At that time, Md. Rule 2-512(b) stated that “An alternate juror who does not replace a juror shall be discharged when the jury retires to consider its verdict.” However, neither counsel cited to this Rule at the time jury deliberations began and the judge thought that, in this complex medical malpractice case, it was logical to have the two alternate jurors sit in during jury deliberations, but not discuss the case with the jury. Defense counsel did not object to the alternate jurors sitting in on the jury deliberations; however, Plaintiff's counsel did. Defense counsel did, however, later object to the substitution of the two alternate jurors, and cited Md. Rule 2-512(b). Plaintiff's counsel contended that defense counsel waived his right to object. The trial court overruled defense counsel's objection, and the jury quickly found in favor of Plaintiff.

The Court of Special Appeals reversed the judgment of the trial court, holding that the trial court erred when it allowed two alternate jurors to be present in the jury room during deliberations and by substituting two alternate jurors for two original jurors. The Court of Special Appeals reversed and remanded the case for a new trial.

The Court of Appeals affirmed the decision of the Court of Special Appeals. The Court stated that it need not decide whether the presence of alternate jurors during jury deliberations, and the substitution of alternates for regular jurors after deliberations had begun are issues which can be waived. This was because the presence of alternates during jury deliberations, and the substitution of alternates for regular jurors after deliberations have begun, are separate and distinct issues. Although defense counsel did not object to the alternate jurors being present during deliberations, he consistently objected to the mid-deliberation substitution of alternate jurors for regular jurors. The trial judge's substitution of alternates for regular jurors after deliberations had begun was clearly error and was presumptively prejudicial. Consequently, even if assumed arguendo, the principles of waiver are applicable, defense counsel did not waive his objection to the mid-deliberation substitution of alternate jurors for regular jurors.

In light of the Court of Appeals' opinions in Hayes v. State, 355 Md. 615 (1999) and Stokes v. State, 379 Md. 618 (2003), and the unambiguous language of the Maryland Rules, the Court found it clear that the Court of Special Appeals correctly reversed the judgment of the trial court and remanded the case for a new trial. Thus, the rule is that alternate jurors who did not replace regular jurors must be discharged when the jury retires to consider its verdict. Such alternate jurors neither can be present at the deliberations after the jury retires, nor can such alternates be substituted for regular jurors after the jury retires.