Brockington v. Grimstead
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 58 September Term, 2006 McNEAL BROCKINGTON v. JOYCE GRIMSTEAD Eyler, De borah S ., Adkins, Krauser, JJ. Opinion by Eyler, Deborah S., J. Filed: September 7, 2007 In the Circuit C ourt for B altimore C ity, Joyce Grimstea d, the appellee/cross-appellant, brought a medical malpractice action against McNeal Brockington, M.D., the appellant/cross-appellee. The case was tried to a jury for six days and resulted in a verdict for Grimstead in the amount of $4,414,195, including $3,000,000 for non-e conomic damages. On a motion for remittitur, the non-economic damages award was reduced to $545,000, for a total judgment of $1,959,195. The parties noted a timely appeal and cross-appeal, posing two questions for review, which we have rephrased as: By Brockin gton: I. Did the trial court commit reversible error by allow ing two alte rnate jurors to attend jury deliberations and then substituting the alternates for two regular jurors during the deliberations? By Grim stead: II. Did the circuit court err in the amount by which it reduced the jury s award of non-economic damag es? We answer Brockington s question in the affirmative and therefore shall reverse the judgment and remand the case to the circuit court for further proceedings. Our disposition of that question obviates the need to address Grimstead s question. FACTS AND PROCEEDINGS On Novembe r 14, 2003 , Grimstead filed suit aga inst Brock ington, allegin g that he negligently failed to diagnose and treat her cancer of the retroperitoneum1 during the five- 1 The retroperitoneum is the posterior portion of the abd omina l cavity. S TEDMAN S M EDICAL D ICTIONARY 1456, 1686 (28 th ed. 2006). year period in which he was her primary ca re physician. W hen Grim stead's cance r eventually was diagnosed by another physician, in November of 2002, her prognosis was extremely poor and her probable life expectancy was short. Because the issues on appeal are proced ural, we shall not give a detailed recitation of the facts that gave rise to the malpractice allegations. Grimstead prayed a jury trial. The case came on for trial and jury selection began on November 1, 2005. After voir dire, but before sele ction of the jury, the judge d iscussed w ith counsel the number of alternates and the size of the jury, and asked whether they would consent to a verdict from five jurors if circumstances so required. Counsel for Grimstead consented but Brock ington's cou nsel did no t. The judge reviewed counsel s peremptory strikes and expressed concern that Grimstead s lawyer had " manage d to challenge . . . the first five whites on the panel." He noted that the rema ining availab le jurors all we re African -America n and told counsel he was not going to allow that." Brockington s lawyer interposed a Batson challenge.2 Counsel for Grimstead pu t on the record his reasons for each peremptory strike. The court found that the reasons given for striking one potential juror were improper, in that they were based on gender, and the reasons given for striking another potential juror, number 263, were absol utely spec ious. 3 It also found, however, that Brockington s lawyer had stricken 2 Batson v. Kentucky, 476 U.S. 79 (198 6). 3 Potential juror num ber 2 63 w as a m usician. G rims tead 's lawyer explained that, while he usually finds musicians to be fai rly liberal whe n it comes to verdicts[,] b ecause this musician was a member of an orchestra - a structured, well organized unit or team - he might b e more sympath etic to a p hysician w ho also functio ned as p art of a te am. -2- three of the same five potential jurors. On that ground, the court seated the jury, but reserved swe aring in the ju rors until the f ollowing day. The next morning, the court told counsel that it had secured [potential juror number 263] and that, if they needed to cure that issue, he could be seated as Juror Num ber Four. Then they would all be bumped down by one. After further discussion with counsel about Grim stead's asserted reasons for striking each of the five jurors, the court made a finding that potential juror number 263 was improperly stricken by Grimstead s counsel and that the most appropriate remedy w as to seat him as Juror Numb er 4. The court did so, ov er Grimstead s objection. The originally seated Juror Number 4 became Juror Number 5, and so forth. The resulting jury consisted of six regular jurors and four alternate jurors.4 The jury was sworn and trial commenced. On Novemb er 9, 2005, at the close of all the ev idence, six regular jurors and two alternate jurors remained.5 Late r that day, after closing arguments, the court sent the regular jurors and the alternates hom e for the evening, and instructed all of them to return in the morning. The court and counsel then had the following discussion about the alternate jurors: 4 Because four alternates were selected, rather than the three originally contemplated, each party was entitled to one additional peremptory challenge under Rule 2-512(h). The parties e ach w aived th is additio nal cha llenge. 5 Alternate Juror Number 3 was excused on November 2, 2005, because her employer would not com pensat e her fo r jury duty, ca using g reat eco nomic hardsh ip. Juror Number 1 was excused on November 4, 2005, after she alerted the court that her supervisor was present in the courtroom as a supporter of Grimstead. She was replaced by the pers on then design ated as A lternate J uror N umbe r 1. -3- THE COURT: Counsel, I think tomorrow I am still going to have the two alternates just sit without participating in the discussion and if we need one, we do. If we don t, so be it. If any of you have any vigorous o bjection to tha t, let me k now n ow. [COU NSEL F OR PL AINTIFF ]: I have a vigorous ob jection, Your Hon or. THE COU RT: You do? [COUN SEL FOR PLAINTIFF ]: Yes. THE COU RT: To sitting in, but not participating in the discussion? [COUNSEL FOR PLA INTIF F]: Ab solutely. C omple tely unne cessary. If [all the jurors] return tomorrow, [the alternates] should be dismissed. THE COURT: You know , I ve had a medical malpractice case involving one of the [defense] attorneys here where the jury deliberated for five days, and I worry about situatio ns like that in setting the stage . If you can co me in with some authority, tomorrow morn ing I ll entertain it. I ve done this in several other cases and no one s ever objected to having the [alternate] jurors sit in my jury room is rather large have the two alternates sit somewhere in the corner, just sit there and not participate in the discussion in the event that one of them was pres sed into service . So we will see where we are [tomo rrow]. When court reconvened the next morning, N ovember 10, the jud ge asked Grim stead s lawyer whether he had some authority to the contrary on the issue of the alternate jurors being present for, but not participating in, deliberations. Responding that he had not had time to research the issue and thus had no authority to offer, counsel nevertheless argued: I m just trying to be pragmatic about this, and I m thinking how can [the alternate jurors] be sitting in a room, and not participate, and if they are deliberating for hours, they are going to certainly hear everything that is going on. So when you say, they are not participating, I think they are participating. They are hearing everything. They are going to be hearing debates. It s inevitable they are going to hear that. . . . But I understand the C ourt s concern. If the Cou rt is going to ins ist that the alternates rema in, I would object, and I would, at a minimum , ask that they be s omehow , I don t wa nt to -4- use the word quaran tined, but I d rather them not be there, because it may be impossible to prevent them from participating, just, even if the Court just gives them instructions. Just like you told them not to discuss the case, and they did, and I think hearing this and ma king face s, I don t see h ow they are g oing to divorce the process , even in a larg e room, the y are hearing. I w ould feel more comf ortable w ith them being s omew here se parated . Grimstead s co-counsel interjected that, if an alternate juror w ere present in the jury room, but not deliberating, and a regular juror then were excused and replaced, deliberations would have to start from scratch, because the alternate w ould not have been participating in the deliberations previously. Thus, isolating the alternate jurors was pref erable and would be no less e fficient. Brockington s counsel responded: Your Honor, I think the last trial [before you], which finished two weeks ago, we did the same thing, Your Honor suggested. I didn t object then. I don t object now. . . . We wouldn t agree to take less than six. The trial judge no ted that he h ad used th is same pro cedure m any times prev iously without any objection. Moreover, he did not believe that the courthou se had an available location to sequeste r the two alte rnate jurors during deliberations, as Grimstead s lawyer had proposed. The judge did not see where there [was] any harm in the alternate jurors listening to, but not participating in, the deliberations until such time as it might become necessary to substitute them. Taking the court s statement as its ruling, Grimstead s lawyer asked, without withdrawing his objection, that the court instruct the alternate jurors not to react with facial -5- expressions while they listened to deliberations. The jury then was called in and instructed as follows: The first six o f you are the jury pa nel. The two in the back row are alternates. The six of you will participate in the discussion and try to resolve the issues that you have to decide. The two alternates will sit in the jury room, but you will sit apart from the ju ry. Sit on the sofa. You can listen in on the discuss ion, but you are n ot to par ticipate. The reason I am doing this is because if there is a problem , we have to have six jurors. An d if we sh ould unfortunately lose one of you for whatever reason , we w ill have a n alterna te. *** So the six will sit at the table and participate in the discussion, and the two alternates rem ain in the jury roo m, you will listen to discussion, but you are not to participate. And I can t emphasize that enough. *** To the two alternates, during the discussions that you hear, I want you to remain as neutral as possib le. You are not to make any facial expressions or body expressions whether you agree with something you hear or disagree w ith something you hear. You are not to reflect how you feel about anything. Just sit there and listen and remain as neutral as possible. The jurors retired to the jury room to begin deliberations shortly before 10:00 a.m. That afternoon, the court received two notes: one from an alternate juror s eeking to be excused until such time as he was needed to actually deliberate and the other from the jury foreperson reporting that we are deadlocked at three and three. Brockington s lawyer stated that, if the jury had not reached a verdict by the end of the day, we w ould be inc lined to move for a m istrial. The cou rt announ ced its intention to -6- allow deliberations to continue until the end of the day and to deny the alternate juror s reques t to be ex cused. Later that afternoo n, the jurors w ere broug ht into the co urtroom, rem inded that the next day (a Friday) was a court holiday (Vete ran s Day), an d told that they need n ot report. They were instructed to return on Monday to continue deliberations. The court also acknowledged receipt of the two notes, but told the jurors that they would need to continue their del iberatio ns. When the jurors rep orted on M onday mor ning, November 14, Juror N umber 4 presented the court a letter from his doctor and a note in which the juror asked to be excused from service. In the note, the juror stated that he was scheduled to receive immunization shots the next day, Novem ber 15, for an upcoming trip to Indonesia. According to the doctor s letter, the juror had a damaged heart and should not ha ve been serving o n a jury at all. Counsel were asked their views about Juror Number 4 s request, to which Brockington s lawyer responded: Your honor, juror number 4 was a juror in whom we hav e had the greatest confidence because he seemed to be from my observations, one of the most attentive jurors. He was taking notes the whole time. We feel it would be extrem ely prejud icial to the defen se to ha ve him stricken at this tim e. Counsel added tha t, because th e jury apparen tly was deadlo cked, it wo uld be prejudicial to disturb the dyna mics of the jury fo r either sid e. -7- Grimstead s lawyer disagreed and moved to replace Juror Number 4 with one of the alternate jurors. Juror Number 4 was the person who was the subject of the Batson violation by Grimstea d s couns el during jury sele ction; and w ho had b een seated on the jury to remedy the viola tion. Brockington s lawyer su ggested that t he ju ry, as constituted, be allowed to deliberate until the end of the day. The court agreed, prompting Grimstead s counsel to inquire why the alternates had been retained if they would not be used to substitute under these circumstances. The court responded: [T]wo things. First of all, he [referring to Juror Number 4] was one of the initial jurors and that s som ethin g tha t weighs with me. S econ dly, I m not impressed at all with his [excuse]. Juror Number 4 then was called before the court and instructed to keep deliberating for the rest of the day. Before deliberations resumed, the jurors were given an Allen charge.6 At 2:00 p.m. that same day, the jury foreperso n again sen t a note to the judge stating that the jurors were deadlocked, three to three. The jury was instructed to continue delibera ting. At 4:35 p.m., Brockington s law yer moved for a mistrial, asking the court to declare a hung jury if the jurors did not return a verdict that day. Couns el also objec ted to any substitution of an a lternate juror f or Juror N umber 4 . He adva nced five reasons in support. First, a substitution would undo the previously imposed Batson remed y. Second, 6 Allen v. United States, 164 U.S. 492 (1896) (holding that an instruction to ju rors to listen to and give consideration to the opinions of fellow jurors was constitutionally permissible). -8- Alternate Juror Number 1, who ostensibly would replace Juror Nu mber 4, w as female while Juror Number 4 w as male. This was p roblematic because, du ring jury selection, Grimstead had improperly cited gender as a reason for striking a juror. Third, the court had not excused Alternate Juror Number 2 when he raised work-related concerns on day one of the delibera tions. Fo urth, We also took a look at some case law and there is a 2004 cas e actually that received consid erable p ublicity, . . . [Stokes v. State,] 379 Md. 618 and that case stated that . . . There can be no doubt that despite his good intentions and attempt to cure the air, the judge erred by allowing the alternates to attend any part of t he jury de liberatio ns. So, at this point, while we did not object to the court permitting alternates to go to deliberate, at this point if the court is prepared to substitute juror number four with one of the alternates we do object and we no longer waive that objection, we make the objection that the alternates not be permitted to partic ipate in th e delibe rations. And last, Brockington s counsel observed that, if Juror Number 4 were excused, counsel for both parties would be en titled to talk to him if they were so inclined. Thus, they could find out the status of the deliberations midway through, which would be very intrusive to the jury functioning[.] In summarizing his positions, Brockington s counsel re-directed the court s attention to Stokes, stating: Obviou sly we could waive it, but at this point I no longer waive my objection to the alternates being in the jury room and witnessing the deliberations. [Stokes] is a complicated case, it s a criminal case, but M aryland [R]u le 2-512[(b)] addresses alternate jurors and it states at the very end of that sub[]paragraph and I quote, An alternate juror who does not re place a juro r shall be discharged when the jury THE COU RT: That s a criminal statute you re reading. -9- [COUNSEL FOR DEFEN DANT]: No, actually, I m reading from the civil. The criminal one is identical on that and has the sa me sentence. . . . 2-512[(b)] and it states that an alternate juror who does not replace a juror shall be discharged when the jury retires to consider it s verdict. And of course we could waive tha t. [Grimstea d s couns el] did not w aive it. I waive d it earlier, but I no lon ger waiv e it. Grimstead s lawyer countered that defense counsel had already waived any argument he ha[d] about the alternates being allow ed in the jury room during deliberations and argued that Juro r Num ber 4 sh ould be replace d with a n alterna te. The court denied the motion for mistrial; asserted that it had com plied with Stokes by instructing the alternate ju rors not to participate in the deliberations; and excused Juror Number 4 from further service. T he remaining me mbers of the jury then w ere dismissed for the d ay. Thereafter, the court briefly discussed with counsel a note it had received from Juror Number 6 requesting to be exc used because he r employer would no longer pay her. The court d eclined to excu se that ju ror bec ause [ s]he do esn t ha ve a m edical e xcuse. Shortly after 10 a.m. the next day, November 15, the court received a letter from Juror Number 5's doctor stating he s off work/jury duty [November 15]-[November 16, 20]05 . The court called in the jury and dismissed Ju ror Number 5 , without any inquiry. It then substituted Alternate Juror Number 1 for the previously dismissed Juror Number 4 and substituted Alternate Juror Number 2 for Juror Number 5. The jury as reconstituted was sent to the jury room to deliberate. The court did not instruct the jurors about the process they -10- should follow , i.e., whether they should start deliberating anew or pick up deliberations where the original jury had left off. Brockington s lawyer renewed his objection to the substitution of alternate jurors for regular jurors: Both [excused] jurors are the most educated jurors on this panel. [Juror Number 4] has 18 years of education. [Juror Number 5] has 16 years of education. The jury was deadlocked three to three. I obviously don t know how they re voting, who s voting which way, but I would tend to think because of the tremendous sympathy in this case that it favors me to have the most edu cated jurors o n the pane l. *** . . . I think the Stokes case is directly on point and under the circumstances it s improper at this point to let the alternates now start deliberating once the other members of the jury were no longer able to deliberate and I do not, I am not willing to go with less than the six original jurors who we re asked to deliberate, so I object, your hon or. The court reasserted that, by instructing the alternates n ot to participate in deliberations prior to their substitution, it had complied with Stokes and therefore defense couns el s m otion is d enied. 7 Later that afternoon, the court received a note from the jury asking for clarification of the instruction on the law of proximate causation. At that time, Brockington s counsel renewed his objection to this process and cited to a second case, Hayes v . State, 355 Md. 615 (1999), as authority for the proposition that alternate jurors may not be substituted for 7 Defense counsel d id not phras e his objection as a renewed motion for mistrial, but the cou rt treated it as such . -11- regular jurors once deliberations hav e begun. The co urt asked for the case citation from counsel, but opined: I wanted to point out tha t in civil [cases], there are pro cedures fo r alternates to deliberate if agreed by counsel and ironically it was [counsel for the defen dant] who did not ob ject to the alternates going in along the procedure I outlined and [counsel for plaintiff] obviously is not objecting at this juncture to that process or proc edure. Defense counsel responded that he believed that he could object at anytime be fore the jury verdict c omes b ack. At 3:07 p.m., the jury reached a verdict. B efore the verdict was tak en, Brockington s lawyer renew[ed his] objection for the umpteenth time to this process. As discussed above, the j ury found f or Grimste ad and aw arded her $ 4,414,195 in dama ges. Brockington filed a timely motion for new trial or, if that request were denied, for remittitur pursuant to the statute capping recove ry of non -econo mic da mage s. See Md. Code (2006 Repl. Vol.), § 11-108(b) of the Courts and Judicial Proceedings Article ( CJ ). The court denied the new trial motion, but granted a remittitur, reducing the total damages award ed to $1 ,959,19 5. DISCUSSION (a) Contentions Brockington contends the trial court erred as a matter of law by not discharging the two remaining alternate jurors when th e regular juro rs retired to deliberate; by allowing the -12- alternate jurors to sit in on deliberations as observers; and by substituting the alternate jurors for two regu lar jurors in the midst of deliberations. He argues that Rules 2-511 and 2-512 and Maryland case law interpreting them make plain that alternate jurors may not be retained after the regular jurors retire to deliberate, may not observe or participate in deliberations, and may not be substituted for deliberating regular jurors. He maintains that these missteps by the court were legal rulings, which are to be reviewed de novo for error; and that the rulings were legally erroneous. He further maintains that this error wa s presump tively prejudicial an d therefore requires rev ersal of the ju dgment. Grimstead does not contest the legal underpinnings to Brockington s contention. Instead, she argues that Brockington consented to the alternate jurors being retained after the regular jurors retired to deliberate and to the alternate jurors bein g present in the jury room during deliberations; and that, b y doing so, he waived any objection to the actual substitution of alternate jurors for regular jurors during deliberations, as the implicit purpose of his original ag reement to retain the altern ates was to allow sub stitutions to happen, if nece ssary. She maintains that Bro ckington s objection to the substitution s immedia tely before they were made was a complete about-face by which he attempted to withdraw [his] consent to th e procedu re for dealin g with altern ate jurors for the cynical purpose of manipulat[ing] the jury process to keep on the jury the two regular jurors he thought would be favorably disposed to the defense. Grimstead further asserts that, because Brockington consented to the process that led to the substitutions, the trial court s rulings should be -13- evaluated for abuse of discretion, no t legal error; and that the court did not abuse its discretion. In reply, Brocking ton argues that he did n ot waive th e issue of a lternate juror substitution because he timely and repeatedly objected to the court s rulings substituting the two alternate jurors for regular ju rors during deliberations. He notes that the objections brought the controlling law to the court s attention before it made the substitution error, and if granted, would have averted that error. He points out that, given that objections must be contemporaneous, see Md. Rule 2-517(c), the issue of alternate juror substitution did not arise until the jurors were deliberating, and that he objected at every step onc e the issue d id arise; therefore, he did not waive an objection to the alternate juror substitution issue. He also asserts that at no time before the issue of substitution ar ose did his c ounsel co nsent to alternate jurors being sub stituted for reg ular jurors; at the very most, defense counsel agreed to the alternate jurors being present during deliberations, which is not the same as consenting to subs titution. Alte rnatively, Brockington argues that the requirements of Rule 2-51 2 are structur al, and cann ot be waiv ed in any eve nt. (b) Applicable Law On Alternate Jurors In Maryland, civil litigants enjoy the right to a trial by a jury of no less than six members in all causes of action in which the amount in controversy exceeds $10,000 and a jury trial rightfully could h ave be en dem anded at com mon la w. See Md. Decl. of Rights, A rt. -14- 5; CJ § 8-42 1(a); Md . Rule 2-511(b). They may, however, consent to accept a verdict from fewer than six juro rs if during the tria l one or mo re of the six ju rors becom es or is foun d to be una ble or d isqualif ied to pe rform a juror s d uty. Md . Rule 2 -511(b ). In addition to the selection of six regular jurors, the court may allow the selection of alternate jurors, as provided in Ru le 2-512(b): (b) Alternate Jurors. The court may direct that one or more jurors be called and impaneled to sit as alternate jurors. Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror s duty shall be replaced by an alternate juror in the order of selection. An alterna te juror shall be drawn in the sa me manner, have the same q ualifications, b e subject to th e same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror. An alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict. (Emp hasis ad ded.) Although there are no appellate decisions construing Rule 2-512(b), the Court of Appea ls twice has interpreted its criminal counterpart, Rule 4-312(b), which is nearly identical. The criminal rule provides: (b) Alternate jurors. (1) Generally. An alternate juror shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same functions, powers, facilities, and privileges as a juror. *** (3) Non-capital cases. . . [T]he court may direct that one or more jurors be called and impa nelled to sit as alternate jurors. Any juror who, before the time the jury retires to consider its verdict, becomes or is found to be unable or disqualified to perform a juror s du ty, shall be rep laced by a n alternate juror in the order of selection. An alterna te juror who does not replace a juror shall be discharged when the jury retires to consider its verdict. -15- (Emp hasis ad ded.) In Hayes v. State, 355 Md. 615 (1999), the Court of Appeals construed the directive in Rule 4-312(b)(3) that alternate jurors be discharged when the jury retires to consider its verdict. The re, th e def endant w as tried by a jury for robbery with a deadly weapon and related charges. Following closing arguments, the court discharged the only remaining alternate juror and instructed the regular jurors to retire to the jury room. Shortly thereafter, the court recon vened af ter learning th at a juror had f allen ill before [the me mbers of the jury were to] begin deliberations. Id. at 618. The court inform ed the parties that, although the alternate juror had been excused, he had not yet left the courthouse. The court recalled the previously excused alternate juror and announced its intention to substitute him for the ailing juror. Defense counsel o bjected, argu ing that the reg ular juror did n ot appear ill earlier in the day. The court made the substitution over defense counsel s objection, stating, deliberations will now be begun. They have not yet begun. Id. The newly constituted jury returned a conviction. On appeal, the defendant argued in part that an alternate juror may not be substituted after the jury retires to deliberate. Id. Noting that the issue was one of first impression, the Court of Appeals considered several possible meanings of the phr ase w hen the jury retires to consid er its verd ict, opining tha t it could refer to the point at which the judge d irects the jury to retire, the time when the jury actually leaves the courtroom (whethe r or not it intend s to report directly to the jury room to begin deliberations), the time when the jury enters the jury room -16- to begin deliberations and closes the door, or when the jury actually beg ins to discuss the case behind the closed door. Id. at 622. The Court observed that the effect of a violation of the rule similarly was a matter of first impression. For guidance, the Court looked to decisions of the federal cou rts and vario us state courts interpreting comparable local statutes or rules. The cases fell into two categories: those in which an alternate juror was substituted prior to the commencement of deliberations and those in which the substitution occurred after deliberations had begun. In the former category, the cases all had upheld th e sub stitution. In th e latter ca tego ry, the results varied depending upon the precise wording of the applicable statute or rule and whether an objectio n had b een rais ed. The federal co urts consisten tly had sustained substitutions occurring in both categories of cases. At that time, Federal Rule of Criminal Procedure 24(c) contained language identical to Rule 4-312(b)(3), permitting substitution of an alternate juror for a regular juror prior to the time the jury retires to consider its verdict. (Emphasis added.) Rule 24(c) recently had been amended, although the amendment had not yet been approved by Congress or taken ef fect, 8 to provide as follows: 8 The amendment as adopted by the Supreme Court later was further amended by Congress to read as follows: (3) Retaining Alternate Jurors. The court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the (continued...) -17- When the jury retires to consider the verdict, the court in its discretion may retain the alternate jurors during delibera tions. If the co urt decides to retain the alternate jurors, it shall ensure that they do not discuss the case with any other person unless and until they replace a regular juror during deliberations. If an alterna te replaces a juror after deliberations have begun, the court sh all instruct the jury to begin its deliberations anew. The Court of Appeals observed that the recent amendment essentially authorize[d], in a more direct way, what many Federal courts had been doing anyway, using a very liberal harmless error analysis to sustain what were clear violations of the [prior version of the] rule. Id. at 626 (recounting a litany of cases in which federal district courts had ignored the mandates of Rule 24(c) in its prior form and federal appellate courts had upheld the rulings for harmless error or non-prejudice 9 ). According to the Cou rt, this practice culminated in United States v. Olano, 507 U.S. 725 (1993), in which a 1 4-juror panel initia lly had been selected, with the consent of the parties, with none designated as alternates until after closing arguments. At that time, the court designated two jurors as alternates and allowed them to return to the jury room with the regular jurors. The a lternate jurors w ere instructed not to participate in the deliberations. The defendant did not object. During the deliberations, one of the alternate jurors was 8 (...continued) court must instruct the jury to begin its deliberations anew. 9 The improper procedu res included allowing a n alternate to sit in for a portion of deliberations before being d ischarg ed, United States v. Allison, 481 F.2d 468 (5th C ir. 1973), retaining and substitu ting three pre viously seque stered alterna te jurors in the midst of deliberations, United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), and even substituting an alternate midway through deliberations when there was evidence the alternate juror had discussed the case with a second a lternate prior to th e substit ution, United States v. Hillard, 701 F .2d 105 2 (2nd Cir. 198 3). -18- excused. The othe r alternate juror remained with the ju ry until it rendered its v erdict, convicting the defen dant. On appeal, the C ourt of A ppeals for the Ninth C ircuit reversed , holding tha t Rule 24(c) was violated, the error was plain, and the violation was inherently prejudicial. The Supreme Court granted certiorari and vacated the Ninth C ircuit s judgment. The C ourt agreed that Rule 24(c) was violated and that the error was plain, but held that the defendant did not dem onstrate prejud ice, i.e., that the error a ffect[ed] s ubstantial righ ts within the meaning of [Federal Rule of Criminal Procedure] 52(b). Olano, supra, 507 U .S. at 737 . The Court of Appeals in Hayes rejected the federal approach, holding: We are n ot at liberty, in a decisio nal contex t, to change the language of Rule 4-312(b)(3), and we refuse to embark on the Federal approach of circumventing the rule through an expansive harmless error or presumptive non-p rejudice doctrin e that is e ntirely fore ign to o ur jurisp rudenc e. . . . [W]e conclude that an alternate juror who remains qualified to serve may be substituted for a reg ular juro r who is prope rly discha rged, until such time as the jury enters the jury room to consider its verdict and closes the door. Hayes, supra, 355 Md. at 635 (emphasis added). Such a standard is practical and workable, the Court reasoned, because compliance with it can be established through objective and extrinsic evidence rather than by requiring inquiry into what went on behind closed doors, i.e., when deliberations actually started. This approach, according to the Court, involves a minimum of inconvenience, moots the argument that an alternate juror, once f ormally discharged , may not be re called, and s hould assure that alte rnate jurors re main qualified to substitute until the time th at substitution is no longer permissible. Id. at 637 (foo tnote -19- omitted). Because the alternate juror in Hayes had been substituted after the jurors had entered the jury ro om an d close d the do or, the C ourt rev ersed th e conv iction. Five years later, in Stokes v. State , 379 M d. 618 (20 04), the Co urt of Ap peals considered the legal effect, if any, of the presence of alternate jurors in the jury room during deliberations, without substitution. There, the defendant entered a plea of no t criminally responsible and elected a bifurcated trial pursuant to Rule 4-314 . That Rule gives the defendant a single co ntinuous trial in two stage s ; the issue o f guilt is tried first an d, if the defendant is found g uilty on any coun t, the issue of criminal responsibility then is tried. Md. Rule 4 -314(b ). The same jury hears both stages of the trial. The Rule also requires that at least two alternate jurors be selected and that they be retained throughout the trial. Id. Twelve regular jurors and four alternates were selected and the guilt/innocence stage of the trial commenced. At the conclusion of that stage, the trial court instructed all sixteen jurors as follows: Madam Forelady, ladies and gentlemen, under the Rule 4-314 that creates a bifurcated trial, at the present time, you are all jurors. You are not bo th jurors and alternates, even though we so designated you. Id. at 623. The jurors then were instructed that their verdict h ad to be unanim ous. Defense counsel objected to the alternate jurors being permitted to deliberate, but the objection was overru led. The jury deliberated for 30 minutes that day, recessed for the weekend, deliberated an addition al tw o hours th e fol low ing M onday, and then sent a note to the court asking, Do alternates count? Id. -20- In the discussion with counsel that followed, the trial judge said that he understood the requirement in Rule 4 -314, that altern ate jurors be retained thro ughout th e trial, to mean that the alterna te jurors we re to delibera te during the first stage of the bifurcated trial but were to be discharged prior to deliberations in the second stage. After further discussion, the court reconsidered and d ecided to instruct the alternate jurors that they were to be mere observers during deliberations in the first stage. The jurors were so instructed an d all sixteen again retired to the jury room. Defense counsel renewed his objection to the presence of the alternate jurors in the jury room during deliberations. The jury convicted the defendant on three counts . The defe ndant sub sequently withdrew his plea of not criminally responsible in exchange for a favorable sentencing recommendation from the State. After sentence was imposed, he appealed his conviction. The Court of Appeals granted certiorari prior to disposition in this Court. 376 Md. 543 (2003). The Court of Appea ls reversed th e convictio ns. It held that, even in a bifurcated trial pursuant to Rule 4-314, it was error to allow alternate jurors in to the jury room to deliberate a nd that, once deliberations commenced with the alternate jurors participating, the error could not be cured. Id. at 629-30. T he Cou rt noted that u nder M aryland law, unlike the procedure in some other states, an alternate juror may not be substituted after jury -21- deliberations have begun. Id. at 630. Accordingly, the deliberations o f the regular jurors are of no concern to the alternates. Id.10 The Stokes Court next addressed the effect of the error. Characterizing alternate jurors not as strangers to the jury, but as third parties, the Court emphasized, as it had in Hayes, the sanctity of the jury room when deliberations are underway. Once the jurors enter the jury room with the alternates, it is extraordinarily difficult to determine what occurred because inqu ir[y] into jury motives is, to a large degree, proscribed by rule [5-606]. Id. at 635 (quoting Jenkins v. S tate, 375 M d. 284, 3 16 (20 03)). The Court held that a presumptive prejudice standard should apply, stating: We consider the presence of alternate jurors during the jury deliberations as sufficiently impinging upon the defendants s constitutional right to a jury trial as guaranteed by the M aryland Constitution and M aryland Rules of Proced ure to create a presumption o f prejudice. Jury deliberations are private an d are to be conducte d in secret. . . . The presence of alternate jurors who have no legal standing as jurors injects an improper outside influence on jury deliberations and impairs the in tegrity of the jury trial. Prejudice must be presumed where alternates breach the sanctity of the jury room. Id. at 638 ( emph asis add ed) (inte rnal citati ons om itted). The Court a lso quoted with approval a decision of the Supreme Court of North Carolin a, State v. Bindyke, 288 N.C. 608 (1975), stating: 10 See also James v. State, 14 Md. App. 689, 699 (1972) (commenting upon interpretation of forme r Rule 748 , which do es not diffe r substantially from Rule 4-3 12(b): It is pellucid that Maryland s [alternate] juror rule provides for a substitution or replacement of regular jurors by alternates up to the juncture occurring when the jury retires to de liberate its verdict. There is no provision in this State s rule for substitution of an alternate juror thereafter. ). -22- The rule formu lated by the ov erwhelm ing majority of the dec ided cases is that the presence of an alternate, either during the entire period of deliberation preceding the verd ict, or his presence at any time during the deliberations of the twelve regular jurors, is a fundamental irregularity of constitutional proportions which requires a mistrial or vitiate s the verdict, if rendered. And this is the result notwithstanding the defendant s counsel consented, or failed to objec t, to the pr esence of the a lternate. Stokes, supra, 379 Md. at 639 (emphasis in original) (quoting Bindyke, supra, 288 N.C. at 623). In a footnote, the Court added that, since the Supreme Court s decision in Olano, supra, some courts have modified this approach when no objection was made, but that preservation was not at issue because Stokes s counsel indeed objected below. Proposed but rejected amendments to Rule 2-512(b) and its criminal counterpart, Rule 4-312(b), also are germane to our analysis. On July 30, 2003, the Standing Committee on Rules of Practice and Procedure ( Rules Comm ittee ) submitted its 152nd R eport recommending amendments to Rules 2-512(b) and 4-312(b). Under the proposed amendments, Rule 2-512(b) would read as follows: (b) Alternate Jurors (1) Gener ally The court may direct that one or more jurors be called and impanelled to sit as alter nate juro rs. Any juror who, before the tim e the juror s s ervice is completed, becomes or is found to be unable or disqualified to perform a juror s duty shall be rep laced by an alte rnate juror in the order of selection. An alternate juror shall be drawn in the same manner, have the same qualifications, be subject to the same examination, take the same oath, and have the same f unctions, po wers, facil ities, and privileg es as a ju ror. An alternate juror who does not replace a juror shall be discharged at such time as the court concludes that the juror s service is completed. (2) Retaining Alternate Jurors The court may retain alternate jurors after the jury retires to deliberate. The court shall ensure that a retained alternate does not discuss the c ase with anyone until that alternate replac es a juror o r is discharg ed. If an altern ate -23- replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew. (Empha sis added.) The Reporter s Note explained that the proposed amendments reflect[ed] a change in the policy underlying the current rule as enunciated in Hayes v. State , 355 Md. 61 5 (1999). The prop osed am endmen ts to Rule 4-312 (b) exactly paralleled the amendments to the civil rule; a nd the Re porter s No te referred b ack to the n ote accompanying Rule 2-512. On November 12, 2003, the Court of Appeals considered and rejected the proposed amendments to both rules. Since then, no further amendments have been proposed. (c) Has Brockington Waived the Arguments He Advances on Appeal? In the appellate setting, the general waiver rule holds that a volu ntary act of a pa rty which is inconsisten t with the ass ignment o f errors on a ppeal norm ally precludes th at party from obtaining appellate review. Franzen v. Dubinok, 290 M d. 65, 69 (19 81). See also Osztreicher v. Juanteguy, 338 Md. 528, 534 (1995) (noting that [t]he right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal ) (quoting Rocks v. Brosius, 241 M d. 612, 630 (1966)); Williams v. Maryland Dept. of Human Res., 136 M d. App . 153, 17 6 (200 0). Grimstead invokes the genera l waiver rule to argue that Brockington consented to the jury deliberation process employed in this case and therefore cannot attack it on appeal. Specifically, she maintains that Brockington agreed -24- that the alternate jurors would be retained after the regular jurors had retired to consider their verdict, that the altern ate ju rors wou ld ob serv e the delib erati ons, and that, if ne cess ary, alternate jurors would be substituted for deliberating regular jurors; and having done so, he cannot now challenge the adverse verdict on the ground that the procedure he consented to, and that was followed, is not permitted by Maryland law. As our recitation of the pertinent procedural facts discloses, the critical exchanges among the court and coun sel about alter nate jurors took place following closing arguments.11 At that point, the court informed counsel that it was goin g to have th e alternate juro rs sit in 11 The exchanges that took place before the closing argumen ts concluded we re ambiguous, in that it was not clear whether Brockington s lawyer was agreeing to a process that would a llow the altern ate jurors to join the regular ju rors, to form a jury of eight, or whether he was agreeing to a process by which the alternate jurors would be retained and, if necess ary, used a s substitu tes for re gular ju rors du ring the delibera tions. For example, after it was decided that counsel would choose three alternate jurors in addition to the sixperson jury, the following exchange took place: THE COURT: If at the end of the case we have three alternates left, can they all deliberate? [COUNSEL FOR PLAINTIFF]: That s something I would like to reflect on, to see how the trial goes. THE CO UR T: O kay. [COUNSEL FOR DEFEN DANT]: I have no objection to letting everybody who is still ava ilabl e wh en th e cas e is se nt to the ju ry Later during the tria l, the court ask ed couns el if they had g iven any thou ght to the issues I raised about jurors? Grimstead s lawyer replied, We would prefer not to have the alternates deliberate, Judge , and co me ba ck tom orrow . The court responded, I m not going to let these alternates leave and not have them com e back under these circumstances wh ere you won t go w ith more than six and the Defense w on t go with less[.] -25- on the deliberations, without participating, and if we need one, we do.... Grimstead s lawyer objected to such a process; Brockington s lawyer made no comment. The next morning, Grimstead s lawyer continued to object. Brockington s lawyer said he did not object. The record thus reflects that, through counsel, Brockington expressly consented to a jury deliberation p rocedure c ontrary to Rule 2-512(b), b y which the a lternate jurors w ould not be discharged when the regular jurors retired to deliberate; and that he im plicitly consented to a jury deliberatio n proced ure that allow ed the possibility of alternate jurors being substituted for regular jurors during deliberations, also con trary to Rule 2-512(b). Because Grimstea d would not conse nt to any such procedure, however, the trial judge made a ruling, stating that he would follow his past practice of retaining alternate jurors after the close of the evidence and sending them into the jury room to observe the deliberations but not participate in th em. The s ix regular jurors and the two alternate juro rs retired to the jury room, and deliberations started. By late afternoon on the second day of deliberations, the jurors had sent two note s declaring that they were deadlocked three to three, and Juror Number 4 had submitted a note from a doctor in an effort to be excused from the jury. Brocking ton s lawyer moved f or a mistrial, on the ground that the jury was hung. Contemporaneously, he objected to any substitution of Juror Number 4 by an alternate juror. In doing so, he retracted his prior express consent to the alternate jurors being retained and sent into the jury room with the regular jurors ( I no lo nger wa ive my objec tion to the altern ates being in the jury room and -26- witnessing the deliberations. ) ; as we have explained, that prior express consent had carried with it the implied consent to the possible substitution of alternate jurors for regular jurors. Grimstead s counsel objected, stating, in essence, that Brockington could not withdraw his prior consent, midstream, to the procedure he had supported. The court did not rule on Grimstead s objection. From that point on, when the circumstance arose that required a ruling on whether alternate jurors could be substituted for regular jurors during deliberations, Brockington s counsel made timely objections, under Rule 2-517(c), on grounds that included the legal argumen ts he now advances on appea l, i.e., that, under Rule 2-512 and controlling Court of Appea ls decisional law, the substitutions were impermissible. (Rule 2-517(c) provides th at, with respect to non-evidentiary rulings, it is sufficient for purposes of appellate review that a party, at the time th e ruling or o rder is mad e or sough t, makes known to the court the action that the party desires the court to take or the objection to the action of the court. Md. Rule 2-517(c); see also Burke v. Assocs. Loan Co., 210 Md. 211, 212 (1956) (holding that a party mu st make his obje ction to a ruling k nown to the co urt wh en the ru ling is m ade)). When the court decided to substitute the alternate jurors for Jurors Number 4 and 5, it rested its ruling not on waiver o r consent but on its unde rstanding that Rule 2-51 2(b), unlike Rule 4-31 2(b), perm its alternate jurors to be retained and substituted for regular jurors, if need be. Th e court exp ressly rejected the legal argum ent presente d by Brock ington s counsel in opposition to substitution, ruling that the procedure it was following was permitted by the applicable civil ru le an d by case law, spec ifica lly, Stokes v. State, supra. The court -27- discharged Juror Number 4 from service on that ground; the next day, it dismissed Juror Number 5 on the same legal ground, after Brockington s lawyer renewed his objection to any substitution. If we assume, for the sake of this discussion, that the requirements of Rule 2-512 are susceptible of being waived, we must decide whether Brockington effectively revok ed his consent to waive some or all of those requirements; and, if so, whether the general waiver rule therefore does not bar Brockington from advancing some or all of the arguments he make s on ap peal. It is Grimstead s position that, having con sented to w aive the req uirements o f Rule 2-512, Brocking ton could n ot change his mind, withdraw his consent, and then complain on appeal about the p rocess that w as used. M oreover, if B rockington could w ithdraw h is consent, this Court sh ould not rec ognize his doing so, because he did so only for the purpose of manipulating the com position of the jury to his liking. Brockington counters that his initial consent to w aive the R ule 2-512 requireme nts could be revoked, at least in part, and th at it was revoked ; and beca use the sub stitutions we re made a fter he revo ked his consent, and over his express objection, he is not precluded by the general waiver rule from challenging the substitutions o n appeal. Gen erall y, a waiver is the intentional relinquishment of a known right, or conduct that warrants such an inferen ce. Myers v. K ayhoe , 391 M d. 188, 205 (2006); Creveling v. GEICO, 376 Md. 72, 96 (2003). It may be effected by word s, acts, or c onduc t. See Richard A. Lord, 13 Williston on Contracts, § 39:14 (4th ed.) (noting that waiver may be -28- accomplished either expre ssly or impliedly through conduct ). An effective waiver of a right extinguishes the waivin g party s ability to raise an y claim of erro r based up on that right. Olano, supra, 5076 U.S. at 733-34. A waiver differs from a forfeiture; the latter is the consequence of a party s failure to timely as sert a righ t. Id. Thus, a party who validly waives a right may not c omplain o n appeal th at the court er red in denying him the right he waived, in part becau se, in that situation , the court s de nial of the rig ht was no t error. By contra st, if a court errs b y denying a party a rig ht, but the party fails to timely object or otherwise invoke the righ t, the part y forfeits h is right to challen ge the c ourt s er ror on a ppeal. Ord inarily, when a party has waived a right and th en retracts his waiver, the effect of the retraction is to revive the right, subject to the doctrine of equitable estoppel. That doctrine lies at the foundation of the law of w aiver beca use estopp el arises as a res ult of the v olun tary co nduct of one party, whereby he is precluded from asserting a right as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse. Arnold Bernstein Shipping Co. v. Tidewater Commercial Co., 84 F. Supp. 948, 952 (D. Md. 1949). In other words, a waiver cannot be revoked when the opposing party has relied upon it and would be prejudiced by the revocation or the revocation would result in an improper manipulation of the judicial process. See Hibbard Brown & Co., Inc. v. ABC Fam ily Trust, 772 F. Supp. 894 (D. Md. 1991) (noting that, in light of stro ng federa l policy in favor of arbitration , a party that waiv ed its right to arbitrate by filing a court a ction may rev oke its wa iver unless th e opposin g party -29- would be prejudiced by the revocation or the revocation would result in improper manipulation of the ju dicial pr ocess). Cf. Rad Concepts, Inc. v. Wilks Precision Instrument Co., Inc., 167 M d. App. 13 2, 162-64 (2006) (ex plaining in the context of commercial contract dispute that when one party repudiates a contract and then retracts the repudiation, the repudiating party s rights under the contract are reinstated, unless, prior to the retraction, the other party cancelled the contract, materially changed its position, or otherwise indicated that it considered the repudiation final; inte rpreting Md. C ode (20 03 Re pl. Vol., 2 005 S upp.) section 2-611 of the Com mercial La w Article); R ESTATEMENT (S ECOND) OF C ONTRACTS, section 256 (stating that retraction will nullify the ef fects of rep udiation if done before either party changes position in reliance upon the retraction or communicates that it considers the retraction to be final). Likewise, the retraction of a waiver o f a right must be timely. First, it must be accomplished when the right still is susceptible of being revived. See, e.g., Kaplan v. RCA Corp., 783 F.2d 463, 466 n.2 (4th Cir. 198 6) (holding that, when the defen dants wa ived their right to have a ju ry decide certain factual issues and, as a consequence, the court made those factual findings, the y cannot no w retract the ir jury trial waiver ) . Second, c onsistent w ith the equitabl e estoppel princip les, th e cou rt has discreti on to rejec t a pa rty s retraction of a waiver if by its timing the attempted retraction would interfere with the administration of the court s business or would amount to a trial tactic, aimed at manipulating the judicial process. In State v. Jones, 270 Md. 388 (1973), fo r example , the defend ant elected a jury trial. After the jury was selected, he was unhappy with its composition, and moved to discharge -30- the jurors and start jury selection anew. When the court denied that motion, the defendant waived his right to a jury trial an d then requ ested a pos tponeme nt, ostensibly to allow him to interview a newly found witness. The postponement was granted, as was a second postponement to extend the defendant s time for trial preparation. Yet a third postponement was granted after the court allowed the defendant to discharge his court-appo inted coun sel, so he could obtain private counsel. When, after the defendant did not obtain private counsel and the court appointed a second lawyer for him, and the case again came on for trial, the defendant sough t to retrac t his wa iver. The trial court refused to accept the retraction on the ground that the waiver, postponements, and attempted retraction of the waiver all were a ploy to obtain a jury other than the one pro perl y selected on the first trial date. On appeal, the Court of Appeals held that in those circumstances the trial court did not abuse its discretion by refusing to allow the def endant to retract his jury trial waiver. In those fede ral circuits where th e courts of appea ls have held that the requ irements of Rule 24 are subject to being waived, the courts also have commented upon the related issue of revocation of waiver. In United States v. Cencer, 90 F.3d 1103 (6th C ir. 1996), the court held that the prohibition in Rule 24(c) against substituting alternate jurors after submission of the case to the original jury can be waived. T here, imm ediately before closing argumen ts on a Friday morning, the trial judge reminded counsel that two of the 12 regular jurors could not s tay to deliberate d uring the following week, and suggested that two alternate jurors sit in on the deliberatio ns so they cou ld be substitu ted for regu lar jurors, if necess ary. Cou nsel fo r both p arties af firmativ ely agreed to that pr ocedu re. -31- Ultimate ly, during deliberations, the trial court substituted the two alternate jurors for the two regular jurors who had to leave. The defendant did not object to the substitutions (nor did the government). After convictions were returned, the defendant appealed, arguing that the trial court had erred by not following the requirem ents of Rule 24(c); that he did not waive the requireme nts of Ru le 24(c); and that, while he had forfe ited his right to challenge the cou rt s error , by not ob jecting, th at error w as subje ct to plain error rev iew. The appellate court held that the defend ant had waived the requirements of R ule 24(c), not forfeited his right to object to them, and hence there was no error on the part of the court in not adhering to the requirements of that rule. In so holding, the court made the following comme nt: In sum, we hold that where , as here, the d efendan t affirmatively consents to a procedure in which alternate jurors are silently present during initial jury deliberations, in anticipation of a possible substitution, and alternates ultimately are substituted, the defendant waives any challenge to such a procedure under R ule 24( c). Naturally, though, the defendant does not necessar ily waive all related o bjections. F or exam ple, as in the instant case, the defendant can still object to any jury instructions concerning the substitution, and if satisfactory procedures for substitution cannot be devised, he may certainly be perm itted to w ithdraw his conse nt before it is too late. H ere, how ever, [the d efendan t] did not a ttempt to retract his conse nt to su bstituti on. Id. at 1109 (italics in o riginal, b old em phasis a dded). Returning to the case at bar, we conclude that Brockington s retraction of his consent to the alternate juror procedure he agreed to at the conclusion of the trial was p artially effective, at least as to the substitution of alternate jurors for regular jurors, and should not -32- have been rejec ted by the trial cou rt for the reaso ns it relied upon.12 When Brockington announced, prior to any substitutions being made, that he was no longer consenting to the process that included substitutions, and instead was advancing a numbe r of argum ents, both general and specific, against substitution, the court did not consider any of those arguments, but instead determined that the substitutions were permitted by rule and case law. To the extent that that was a legal ruling, it was incorrect. To the extent that it was a ruling based upon the exercise of discretion, it was an abuse of discretion, because an exercise of discretion based u pon an error of law is a n abus e of dis cretion. Alston v. Alston, 331 Md. 496, 504 (1993). We explain. Brockington s retraction (through counsel) of his consent to the jury deliberation procedure the court had recommended and implemented came afte r the alternate jurors had been retained and sent into the jury room w ith the regular jurors to observe the deliberations, but before the court decid ed whe ther to discharge any regular juror and substitu te an alternate juror for a regular juror. By the time the retraction was announced, the court could not undo what already had o ccurred, tha t is, that the alternate jurors had not been discharged when the regular juror s retired to delib erate their verdict o r that the alterna te jurors had been present in the jury room for two days of deliberations. In that respect, the waiver retraction issue here is analogou s to that in Kaplan, supra, in which the Fourth Circuit held that it was too 12 Again, we proceed on the assumption that the requirements of Rule 2-512 may be waived. -33- late for a defendant to retract his waiver of the right to have certain factual issues decided by a jury wh en the c ourt alre ady had d ecided those v ery issues . To be sure, when Brockington announced that he was retracting his consent, the alternate jurors could have been removed from the jury room. Had that occurred, and had there been a pla intiff s verdic t without an y juror substitution s, Brockin gton nevertheless would be estop ped to challenge on appeal the court s decision to retain th e alternate jurors and allow them to observe the deliberations. The presence of the alternates in the jury room during deliberations was a fait accom pli by the time Br ockington retracted his c onsent. Howeve r, when the retraction was announced, the court had not yet discharged any regular jurors and sub stituted them with alterna te jurors. Altho ugh Bro ckington im plicitly consented to a jury deliberatio n process th at would h ave perm itted such a su bstitution, he retracted his consen t before any substitution took place, and therefore before the court or Grimstead could hav e taken an y action, with respect to discharge and substitution, in reliance upon his con sent. In addition, there could be no prejudicial consequences to Grimstead or the administration of the court by virtue of the retraction. Grimstead already had made it clear that she was opposed to the court s retaining the alternates beyond the time when the regular jurors retired to deliberate and therefore also was opposed to any substitution of an altern ate juror for a regular juror during deliberations. The procedure she had wanted to follow would not have allow ed for any su bstitutions, and the retraction would accomplish that. Indeed, other than the presence of the alternate jurors in the jury room during deliberations, retraction -34- of the consent merely returned the deliberations to what they would have been, prior to the consent (and absen t legal error on the court s part). Grimstead emphas izes in her arg ument tha t Brocking ton only retracted his waiver of the requirements of Rule 2-512 when he thought it would be to his benefit to do so, in a cynical effort to manipulate the jury deliberation process to his advantage. As the cases we have discussed hold, a party will not be permitted to retract a waiver or consent when doing so is merely a ploy to obtain a result that otherwise could not be accomplished, for example, manipulating the system to avoid trial by a properly selec ted but und esirable jury, and to obtain trial by anoth er jury. See State v. Jones, supra, 270 Md. at 396 (holding that defendant waived right to jury trial, made po stponem ent requests , and retracted jury trial waiver in order to avoid being tried by a jury that was no t to his liking but that was properly selected). Although Brockington s retraction of his prior wa iver was a change in position, it was not a ploy to accomplish what otherwise could not be obtained. T he two ar e not nece ssarily the same. In this case, both parties changed their positions as the circumstances changed.13 13 Grimstead complains that Brockington only became concerned about the prospect of alternate jurors being substituted for deliberating regular jurors when it appeared that the regular jurors wh o he thoug ht, because o f their levels o f educatio n, would be more lik ely to decide the case ba sed upon science, and would be less sympathetic to her, were in danger of being discharged and rep laced by alternates. Yet, as Brocking ton points out, before the jurors retired to deliberate, Grimstead argued vigorously against alternate jurors being retained after the evidence was closed for any reason; later, when faced with the prospect of the court s dismissing the most educated regular juror (who also was the juror she had stricken in violation of Batson, and who had been seated as a regular juror to remedy that violation), Grimstead did no t oppose substituting an alternate juror f or a regular juror. -35- The trial lawyers representin g the parties in this case all are e xperience d and high ly competent practitioners, who were working smartly to attempt to achieve, within the bounds of the law, the best possible outcome for each of their clients. As in any case in which jurors, not the court, are the fact finders, th e composition of the jury plays a critical role in the outcome. Lawyers on either side are advocate s, and are du ty bound to u se their best ef forts (again, within the bounds of the law) to select jurors whose thought processes will be most subject to their persuasion, for any number of legitimate reasons, inc luding edu cational leve l, work history, and life experience. The advocates for the parties on both sides of this case attempted to do just that; and they cannot be faulted for zealous but ethical lawyering on behalf of their clients. Retracting his consen t to permit altern ate jurors to be substituted fo r regular jurors during deliberations, at the time he did so, did not allow Brockington to accomplish anything he could not have accomplished had he not consented to begin with. He did not gain any unfair advantage by the retraction. T his is not a situation in which the retraction of consent was for an ulterior improper purpose. Brockington was no more estopped to retract his consent to the jury deliberation process the court decided to employ, to the extent it had not yet been implemented, than Grimstead was estopped to waive her right to insist that the requireme nts of Rule 2-512, disallowing substitution of alternates for deliberating jurors, be follow ed. For all of these reasons, assuming that the requirem ents of R ule 2-512 can be waived, Brockington s waiver was partially, and effectively, retracted with respect to the discharge -36- of delib erati ng re gula r juro rs an d the subs titution of alte rnate jurors. A ccor ding ly, he is not precluded from challenging on appeal the substitution of alternate jurors for deliberating jurors. (d) Legal Correctness Vel Non of Substitution of Alternate Jurors for Deliberating Regular Jurors The Court of Appeals decision in Hayes makes plain that, under R ule 4-312(b), substitution of an alternate juror for a regular juror is forbidden once the regular jurors have retired to deliberate by entering the jury room and closing the doo r. See also James, supra, 14 Md. App. at 698-99. As we have explained , the case at ba r, being civil, no t criminal, is governed by Rules 2-511 ( Trial by jury ) and 2-512 ( Jury selection ), not by Rules 4-311 and 4-312 (which bear the sam e titles as their civil counterparts). Nevertheless, the operative langua ge in the civil rule s is ident ical to tha t in the cr iminal ru les. Indeed, in Hayes, the Court of Appea ls pointed ou t that the stand ard in both Rule 2512(b) and Rule 4-312(b) mandating discharge of the alternate jurors when the jury retires to consider its v erdict is the sa me for bo th civil and crim inal cases. Md. Rule 2-512(b) allows a substitution before the time the jury retires to consider its verdict and requires that alternate jurors b e disch arged a t that time . 355 M d. at 621 n.1. Because neither Ru le 4-312(b ) nor Rule 2-512(b) contemplates that alternate jurors will be present after the regular jurors retire to co nsider their ve rdict, neither rule contemplates a circumstance in which the court has discretion to replace a deliberating juror -37- with an alternate ju ror. As this Court observed many years ago in James, the Maryland Rules simply do not permit the substitution of an alternate juror for a regular juror after the jury has commenced deliberation. 14 Md. App. at 699. It was that circumstance that prompted the proposed rule changes that would have allowed alternate jurors to be retained after the regular jurors had retired to deliberate and further would have permitted the court to replace a deliberating juror with an alternate juror. (Even if the proposed amendments had been adopted, they would not have permitted the process employed here, in which alternates sat in on delibera tions; rather, they w ould have requ ired that alterna tes be kept s eparate an d that, upon s ubstitutio n, the ne wly reco nstituted jury begin delibera tions fro m the sta rt.) In the case at bar, the trial co urt s legal ruling that it had the a uthority, under R ule 2512(b), to replace a deliberating juror with an alternate juror was incorrect; and the court erred, twice, in doing so. Both Hayes and Stokes are unequivocal in holding that a presumptive prejudice standard applies w hen the san ctity of the jury room is breached by allowing a lternates to attend or partic ipate in d eliberatio ns. He re, both violatio ns occu rred. The theory behind such a standard is twofold. First, it avoids inquiry into the sanctified space of the jury room to determine what impact the presence of alternates had on the outcome of deliberations. Second, it recognizes the gestalt concept that, once a ju ry begins delibe rating, it ceases to be six individual ju rors and be comes a th ing unto itself . To insert new mem bers into the jury midstream canno t but hav e some impac t on the d eliberatio ns. Cf. Dep t of Human Res. v. Howard, 397 Md. 353, 369 n.18 (2007) (commenting that within appellate courts the -38- dynamics of conferencing and deciding a case is sometimes a delicate process influenced by the presence or absen ce of certain judges ). In the instant case, even under a prejudicial error standard, the impact of the substitution is clear. For more than 10 hours over the course of 2 days (with a three-day holiday weekend in the middle), the jury deliberated without reaching verdict. Twice during that period the foreperson informed the judge that the jurors were deadlocked three to three. Even under the p roposed a mendm ents to Rule 2-512, which the Court of Appeals rejected, substitution of an alternate juror mid-deliberations would have required an instruction by the court that deliberations were to begin anew. In the instant case, no such instruction was given. Three hours and 37 minutes after the substitution of the two alternates, the jury reached a verdic t. The inference is strong, from the timing of events, that the change in the composition of the jury mid-deliberations caused a change in the outcome of the case, to Brockington s prejudice. We understan d the trial cour t s interest in averting a mistrial due to a hung jury after a long and complex trial. Any remedy to this problem, however, must comport with the Maryland Rules. One solution allowed by the Rules provides that civil parties may consent to accepting a verdict from less than six ju rors. Brock ington did n ot consen t to this possibility in the instant case, as was his prerogative. The proposed amendments to the Rules provided another po ssible solution, but they were rejected by the Court of Appeals. Unless or until the Rules a re change d by amend ment or the legislature see s fit to interven e, alternate jurors m ay not pa rticipate i n jury delib erations in any cap acity, inclu ding by su bstitution . -39- The trial court committed legal error by substituting the alternate juro rs for tw o regular jurors durin g deliberation s. Under th e presum ptive prejud ice standard set forth in Stokes, supra, the remed y for that error is rev ersal of the ju dgment a nd a new trial. JUDGMENT REVERSED. CASE REMANDED TO THE CIRCU IT COURT FOR BALTIMORE CITY FOR FURTHER PR OCEEDINGS. COST S TO BE PAID BY THE APPELLEE. -40-
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