ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana Tyler G. Banks FILED
Deputy Attorney General
Indianapolis, Indiana 08/31/2017, 10:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
COURT OF APPEALS OF INDIANA
Adrian Durden, August 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1701-CR-188
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Grant W.
Appellee-Plaintiff. Hawkins, Judge
Trial Court Cause No.
49G05-1505-MR-17228
49G05-1506-F5-19402
49G05-1506-F5-19449
49G05-1506-F5-20230
Brown, Judge.
Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017 Page 1 of 11
[1] Adrian Durden appeals his conviction for murder. Durden raises one issue
which we revise and restate as whether the removal of a juror after the jury had
begun its deliberations requires reversal. We reverse and remand.
Facts and Procedural History
[2] In December 2016, Durden was tried by a jury on charges of murder and eight
drug-related offenses including conspiracy to commit dealing in a narcotic drug,
dealing in a narcotic drug, and possession of a narcotic drug.1 Approximately
one hour and forty-four minutes after the jury began its deliberations,2 one of
the jurors (“Juror No. 12”) sent a handwritten note to the trial court which
read: “Judge I would like to be excused from this case I can not agree quickley
[sic] on the charges. I just cant [sic] come to a decision on the charges.”
Appellant’s Appendix Volume IV at 64.
[3] The trial court stated on the record:
I talked with the lawyers in chambers. The process upon which
you agreed was to invite the foreperson into open court, ask him
– it’s Mr. (omitted) by the way, the gentleman in seat number
seven there, if a verdict has been reached on any count. If no
verdict has been reached on any count I think we agreed to
excuse Ms. (omitted) and put Mr. (omitted) in her place. That
1
This appeal follows Durden’s convictions at his second trial after Durden’s first trial resulted in a hung jury.
2
The court stated that “[t]he jury started deliberating at 1:57, it’s now about 3:41.” Transcript Volume IV at
176.
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way we would be guaranteed of one African-American on our
jury. Mr. (omitted) would be our remaining alternate. If they
have reached a verdict on any counts then the question is how we
handle it and I think the first part of the discussion was we’ll
either ask them to write with a different color pen on the
remaining verdict forms or ask Mr. (omitted) if his verdict would
be the same on the counts they’ve already decided or do both.
Transcript Volume IV at 177. The court asked Durden’s defense counsel
“[w]here are you on that,” and defense counsel stated “I would be more
comfortable with, if they’ve reached verdicts on some of the counts, to keeping
Ms. (omitted) on but if they have not we don’t object to removing her and
placing Mr. (omitted) on the panel.” Id. The court said “[o]kay, so if they have
reached a verdict on any counts we keep her there,” defense counsel replied “I
think just to preserve the integrity of the process,” the court stated “[w]ell, she’s
. . . subverting the integrity of the process,” and defense counsel said “[w]ell, it’s
been an hour and a half, two hours or so.” Id. at 177-178.
[4] The court said “I think in a situation like this we all have to agree” and asked
that the jury foreperson be brought into the courtroom. When asked if he knew
that another juror had sent a note indicating she wanted to be excused from the
case, the jury foreperson responded affirmatively. When asked if the jury had
agreed on any counts yet, he responded affirmatively, and when asked how
many counts, he indicated six counts. The court asked if there was a verdict on
the murder charge, and the foreperson replied “no, that’s one we’re waiting to
do.” Id. at 179. The jury foreperson returned to the jury room.
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[5] The bailiff asked the court “is he allowed to tell the others,” and the court
stated: “Tell him to hold it for a moment, don’t discuss it. Unless they pound
on her I think we’re done for the day if this note is to be taken as dramatically
as it seems to be written. Any thoughts or suggestions, [defense counsel].” Id.
at 180. Defense counsel asked “[w]hat is the court’s position as far as brining
out Mr. (omitted),” and the court answered “[w]ell that was an option that you
had –,” defense counsel stated “[r]ight, and I think –,” and the court stated “I’d
offered up two options, both in the alternative and altogether and you said no.”
Id. Defense counsel said “[w]ell, no, I meant . . . I’m curious where they are, if
they were nowhere near anything but –,” and the court stated “[w]ell, I don’t
want to bring him out here and say hey, if you had to vote would this thing be
over with by now. I don’t want to do something like that.” Id.
[6] Durden’s counsel said “[l]et me talk with my client,” and the court said
“[o]kay.” Id. Durden’s counsel then stated: “Judge, we are not opposed to
having juror number 12 excused, being replaced by the second alternate, Mr.
(omitted).” Id. The court then asked “[a]ny caveats, any conversation you
want me to have with anyone,” and defense counsel replied “I don’t think
anything – at this point I don’t know what would be – what would be any topic
of conversation.” Id. at 180-181. The court said “I can always say no, I just
wanted to know if you –,” and defense counsel said “I can’t think of anything,
Judge” and “I mean, that’s why there’s an alternate, I guess.” Id. at 181. The
court asked “[n]ow, do you want me to bring anybody out here or do you want
me to just go in there and say Ms. (omitted), thank you very much for your
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service, you’re released, Mr. (omitted), you’re now on our jury and can take
part in deliberations,” and Durden’s counsel replied “I think the less traumatic
it is the better.” Id. at 181. The court stated “[w]ell, that’s – I prefer it that way
but I –” and defense counsel stated “I prefer it that way.” Id. at 181-182. The
court stated “I kind of needed your permission if I’m not doing it on the
record,” and defense counsel said “[y]es.” Id. at 182. The court took a recess
and, after reconvening, stated:
Let me report that with your permission I did speak to the jury
after our last hearing, released Ms. (omitted), told Mr. (omitted)
that he was part of the jury. On my way out, Mr. (omitted), the
foreman, asked me if they were supposed to go over the counts
on which they’d already reached a verdict and I said you are the
jury. You decide that. I think that’s appropriate. Mr. (omitted)
may or may not have changed the dynamic.
Id. at 184. The jury found Durden guilty of murder and the eight drug-related
counts.
Discussion
[7] The issue is whether the removal of Juror No. 12 after the jury had begun its
deliberations requires reversal. Durden contends that, although his defense
counsel did not object and acquiesced in the action of the court, the procedure
resulted in fundamental error. He argues that Juror No. 12 was dismissed
merely because she could not agree with the other jurors, that the court’s
procedure of skipping over the first alternate available and calling the second
violated Ind. Trial Rule 47(B) and the rule does not provide an exception for
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courts to arbitrarily change the order in which they replace regular jurors in
order to afford racial balance on a jury, and that the court failed to instruct the
remaining jurors.
[8] The State responds that Durden’s affirmative agreement with the trial court’s
proposed procedure for responding to Juror No. 12’s note means that
fundamental error review is unavailable. The State also argues that the record
reveals no evidence of any disagreement between any of the jurors, the jury had
not yet considered the murder charge at the time Juror No. 12 was replaced,
Durden does not attempt to show the alternate juror was not qualified, and
Durden has not shown how it was impossible for the jury to fairly return a
verdict pursuant to the court’s instructions.
[9] Generally, failure to object at trial waives an issue for review unless
fundamental error occurred. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013).
The fundamental error exception is extremely narrow and applies only when
the error constitutes a blatant violation of basic principles, the harm or potential
for harm is substantial, and the resulting error denies the defendant
fundamental due process. Id. The error claimed must either make a fair trial
impossible or constitute clearly blatant violations of basic and elementary
principles of due process. Id.
[10] The Indiana Supreme Court has stated that removal of a juror after
deliberations have begun is ultimately a matter requiring deference to the trial
court’s judgment, but it raises a number of considerations not present before
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deliberations begin. Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004). As a result,
it demands a carefully developed record as to the grounds for removal and also
requires precautions to avoid inappropriate consequences from the removal. Id.
“Once deliberations begin, discharge of a juror is warranted only in the most
extreme situations where it can be shown that the removal of the juror is
necessary for the integrity of the process, does not prejudice the deliberations of
the rest of the panel, and does not impair the parties’ right to a trial by jury.”
Id. at 327-328. “A failure to agree, however unreasonable, is a ground for
mistrial, not removal of the obstacle to unanimity.” Id. at 328 (citing United
States v. Hernandez, 862 F.2d 17, 23 (2d Cir. 1988) (“That a juror may not be
removed because he or she disagrees with the other jurors as to the merits of a
case requires no citation.”), cert. denied, 109 S. Ct. 1170 (1989)). “Removal of a
juror for misconduct requires more than a refusal to negotiate further.” Id.
[11] The Court in Riggs found that “[i]t appear[ed] the effect of the juror’s dismissal
may well have been the avoidance of a hung jury” and stated “[w]e have often
expressed the view that a mistrial is an extreme remedy, warranted only if less
severe situations will not address the problem,” “[t]he trial judge may guide,
encourage and instruct to correct problems in jury deliberations,” and “[t]his
policy in favor of assisting a jury in reaching a verdict is also reflected in Jury
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Rule 28,”3 but that “it does not permit removal of a juror simply because the
juror does not agree.” Id. The Court further stated:
The State contends that [the defendant] did not develop a record
establishing prejudice to him from the removal. We agree a
thorough record is necessary to establish grounds for removal.
But it is not up to the parties to show prejudice as to the
outcome. Unjustified removal is structural error, just as much as denial
of the right to an impartial jury. As the United States Supreme
Court put it in Gray v. Mississippi, 481 U.S. 648, 668, 107 S. Ct.
2045 (1987), “some constitutional rights [are] so basic to a fair
trial that their infraction can never be treated as harmless error.
The right to an impartial adjudicator, be it judge or jury, is such a
right.” Moreover, to establish that the right is not infringed, the
trial court must establish the record to support removal of a
deliberating juror, just as a record is required to establish bias of a
prospective juror. Lindsey v. State, 260 Ind. 351, 357-59, 295
N.E.2d 819, 823-24 (1973).
Id. at 328-329 (emphasis added). The Court also stated that “[r]emoval should
be accompanied by an instruction that removal in no way reflected approval or
disapproval of the views expressed by the juror.” Id. at 329. Also, Indiana
Trial Rule 47(B) states in part that “[a]lternate jurors in the order in which they
3
Indiana Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in its deliberations, the court
may, but only in the presence of counsel, and, in a criminal case the parties, inquire of the
jurors to determine whether and how the court and counsel can assist them in their
deliberative process. After receiving the jurors’ response, if any, the court, after
consultation with counsel, may direct that further proceedings occur as appropriate.
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are called shall replace jurors who, prior to the time the jury returns its verdict,
become or are found to be unable or disqualified to perform their duties.”
[12] As noted above, the Indiana Supreme Court held in Riggs that “[u]njustified
removal is structural error,” 809 N.E.2d at 328, and it subsequently stated in
Stephenson v. State that a claim of structural error is “a variant of the claim of
fundamental error.” 864 N.E.2d 1022, 1030 (Ind. 2007), reh’g denied, cert.
denied, 128 S. Ct. 1871 (2008). See Weaver v. Massachusetts, 137 S. Ct. 1899,
1907-1908 (2017) (stating that some errors should not be deemed harmless
beyond a reasonable doubt, “[t]hese errors came to be known as structural
errors,” “[t]he purpose of the structural error doctrine is to ensure insistence on
certain basic, constitutional guarantees that should define the framework of any
criminal trial,” “[t]hus, the defining feature of a structural error is that it
‘affect[s] the framework within which the trial proceeds,’ rather than being
‘simply an error in the trial process itself,’” and that “[f]or the same reason, a
structural error ‘def[ies] analysis by harmless error standards’”) (citations
omitted).
[13] In this case, the trial court did not question Juror No. 12 on the record
regarding her note to determine if she refused to negotiate further or failed to
agree with the other jurors. See Riggs, 809 N.E.2d at 328 (holding that removal
of a juror requires more than a refusal to negotiate further and noting a failure
to agree, however unreasonable, is not grounds for removal); Scott v. State, 829
N.E.2d 161, 167-168 (Ind. Ct. App. 2005) (noting that the trial judge did not
interview the juror whose conduct was at issue and therefore the record was not
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as developed as required for a juror to be removed once deliberations had begun
and remanding for a new trial). Further, the court did not question any of the
jurors on the record regarding the potential impact of the removal of the juror,
and the record does not show that Juror No. 12’s removal was accompanied by
an instruction that her removal in no way reflected approval or disapproval of
the views expressed by her. See Riggs, 809 N.E.2d at 329 (removal should be
accompanied by such an instruction). We additionally observe that the trial
judge stated that he had spoken with the lawyers in chambers, and the record
does not include these communications regarding Juror No. 12’s note. Also, it
appears from the record that the trial judge personally entered the jury room to
release Juror No. 12, and thus the record does not reflect any statements the
judge may have made to the jurors. With respect to the State’s argument that
Durden has not shown how it was impossible for the jury to fairly return a
verdict on the law and that his defense counsel agreed to Juror No. 12’s
removal, we observe that the Court in Riggs stated that unjustified removal
constitutes “structural error” and that “it is not up to the parties to show
prejudice as to the outcome.” See id. at 328; see also Weaver, 137 S. Ct. at 1907-
1908 (stating a structural error defies analysis by harmless error standards). On
the record before us, we conclude that Durden has established that reversal is
warranted.
Conclusion
[14] For the foregoing reasons, we reverse Durden’s convictions and remand for a
new trial.
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[15] Reversed and remanded.
May, J., and Pyle, J., concur.
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