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.

      Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017                              Page 2 of 11
              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.



      Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017   Page 3 of 11
[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


      Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017   Page 4 of 11
      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

      Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017    Page 5 of 11
       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


       Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017   Page 6 of 11
       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




       Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017   Page 7 of 11
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.

Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017                             Page 8 of 11
       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

       Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017     Page 9 of 11
       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.

       Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017   Page 10 of 11
[15]   Reversed and remanded.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1701-CR-188 | August 31, 2017   Page 11 of 11
