                                                                            FILED
                                                                       Jun 20 2018, 10:21 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




                                IN THE

       Indiana Supreme Court
                  Supreme Court Case No. 18S-CR-329

                           Adrian Durden
                           Appellant (Defendant)

                                    –v–

                           State of Indiana
                             Appellee (Plaintiff)


            Argued: December 19, 2017 | Decided: June 20, 2018

                  Appeal from the Marion Superior Court
                        Nos. 49G05-1505-MR-17228
                            49G05-1506-F5-19402
                            49G05-1506-F5-19449
                            49G05-1506-F5-20230
                 The Honorable Grant W. Hawkins, Judge

        On Petition to Transfer from the Indiana Court of Appeals
                          No. 49A02-1701-CR-188



                         Opinion by Justice Massa
Chief Justice Rush, Justice David, Justice Slaughter, and Justice Goff concur.
Massa, Justice

   Criminal defendants enjoy a constitutional right to an impartial jury.
U.S. Const. amend. VI; Ind. Const. Art. 1, § 13. This right “is a structural
guarantee,” Carella v. California, 491 U.S. 263, 268 (1989) (Scalia, J.,
concurring), and its “infraction can never be treated as harmless error.”
Gray v. Mississippi, 481 U.S. 648, 668 (1987) (internal quotation marks
omitted). But is reversal necessary when the violation resulted directly
from the defendant’s affirmative actions at trial?

   In this case, defense counsel expressly agreed to the trial court’s
constitutionally-defective procedure for removing and replacing a juror
after deliberations had begun, ultimately compromising the defendant’s
right to an impartial jury. Because we find that the defendant here invited
the error as part of a deliberate trial strategy, we affirm his conviction.


Facts and Procedural History
   Adrian Durden’s first trial for murder resulted in a hung jury. He was
tried a second time for murder along with eight drug-related charges. Just
under two hours after the jury had begun its deliberations, one of the
jurors—Juror 12—sent a note to the court requesting to be excused from
service because she “[could] not agree quickl[y] on the charges [or] come
to a decision on the charges.” Appellant’s App. Vol. IV, p.64. Counsel
from both sides then met with the trial judge in chambers and off the
record to discuss what to do. Returning to open court, defense counsel
and the State’s attorney both agreed to replace Juror 12 with the second
alternate juror if the jury had yet to reach a verdict on any count. 1
However, Durden’s lawyer expressed a preference for keeping Juror 12 if
the panel had “reached verdicts on some of the counts.” Tr. Vol. IV, p.177.
The court, after commenting that Juror 12 was “subverting the integrity of




1The court and counsel agreed to the second alternate juror instead of the first so that they
“would be guaranteed of one African-American on [the] jury.” Tr. Vol. IV, p.177. See Batson v.
Kentucky, 476 U.S. 79, 97 (1986) (prohibiting racial discrimination in the selection of jurors).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                          Page 2 of 16
the process,” stated that “in a situation like this we all have to agree.” Id.
at 177–78.

   With consent from defense counsel and the State’s attorney, the court
then summoned the jury foreman, who—after acknowledging, without
elaboration, Juror 12’s request to withdraw—stated that the jury had
agreed on six drug counts but was “waiting to do” the murder charge. Id.
at 177–79. The court then instructed the foreman not to discuss his
testimony with the other jurors. After consulting with his client, Durden’s
lawyer informed the court that they were “not opposed to having [Juror
12] excused, being replaced by the second alternate.” Id. at 180. The judge
asked whether defense counsel had “any caveats” or special instructions
for the jury. Id. at 180–81. Defense counsel declined, replying that he
“[could]n’t think of anything” and “that’s why there’s an alternate, I
guess.” Id. at 181. To clarify the procedure, the judge then asked whether
he should simply “go in there” to excuse Juror 12, thank her for her
service, and then instruct the alternate to participate in deliberations. Id. “I
think the less traumatic it is the better,” defense counsel replied, “I prefer
it that way.” Id. at 181–82. “I kind of needed your permission if I’m not
doing it on the record,” the judge stated, seeking assurance. Id. at 182.
“Yes,” defense counsel replied affirmatively. Id. “Then that’s what we’ll
do,” the judge responded. Id.

   The court then replaced Juror 12 with the second alternate. When the
foreperson asked whether “they were supposed to go over the counts on
which they’d already reached a verdict,” the court responded that “you
are the jury. You decide that.” Id. at 184. The jury then resumed its
deliberations, ultimately finding Durden guilty on all counts.

  Durden appealed his murder conviction, arguing that, despite his
acquiescence, the court’s procedure violated his constitutional right to an




Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018           Page 3 of 16
impartial jury, thus resulting in reversible error. 2 Durden specifically
faulted the court for (1) failing to interview Juror 12 to determine the
grounds for her removal; (2) arbitrarily designating the second alternate
juror in lieu of the first alternate, contrary to Indiana Trial Rule 47(B); 3 and
(3) neglecting to admonish the remaining jurors to avoid any prejudicial
effect removal may have had on further deliberations.

   Our Court of Appeals reversed Durden’s conviction, finding Juror 12’s
removal “unjustified” and thus “structural error” under Riggs v. State, 809
N.E.2d 322 (Ind. 2004). Durden v. State, 83 N.E.3d 1232, 1237 (Ind. Ct. App.
2017), vacated. Contrary to the procedural requirements set forth in Riggs,
the panel concluded, the record here failed to show (1) whether the court
questioned Juror 12 to determine the grounds for her removal and (2)
whether the remaining jurors received instructions to preserve their
impartiality. Id. at 1236–37. Because “structural error defies analysis by
harmless error standards,” the panel concluded, Durden was entitled to a
new trial without the need to show prejudice. Id. at 1237.

  We now grant the State’s petition to transfer, thus vacating the Court of
Appeals decision. Ind. Appellate Rule 58(A).


Standard of Review
   Trial courts have broad discretion in deciding whether to remove and
replace a juror before deliberations have begun and, in such circumstances,
we reverse only for an abuse of discretion. Riggs, 809 N.E.2d at 327. A trial
court’s decision to remove and replace a juror after commencement of
deliberations likewise requires a deferential standard of review; however,




2Although Durden argued on appeal that the trial court’s procedure amounted to
“fundamental” error, he relied largely on this Court’s decision in Riggs v. State, which refers to
unjustified removal of a juror as “structural” error. 809 N.E.2d 322, 328 (Ind. 2004). We discuss
the differences between these two error doctrines in Section I.B., infra.
3Under Indiana Trial Rule 47(B), “[a]lternate jurors in the order in which they are called shall
replace jurors who, prior to the time the jury returns its verdict, become . . . unable or
disqualified to perform their duties.”



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                           Page 4 of 16
the decision at that point “raises a number of considerations” implicating
the defendant’s right to an impartial jury and a unanimous verdict. Id.
Under these circumstances, we apply a heightened standard of review,
reversing for an abuse of discretion resulting in the denial of a fair trial.
An abuse of discretion in this context arises when the trial court’s decision
is “clearly against the logic and effect of the facts and circumstances before
the court or it misinterprets the law,” Carpenter v. State, 786 N.E.2d 696,
703 (Ind. 2003), or if the decision “was so prejudicial to the rights of the
defendant that a fair trial was impossible,” Boatright v. State, 759 N.E.2d
1038, 1042 (Ind. 2001).

    Beyond the issue of juror removal, this case implicates the scope of our
invited-error doctrine, a question of law over which we exercise de novo
review. See Horton v. State, 51 N.E.3d 1154, 1157 (Ind. 2016).


Discussion and Decision
  There is no dispute here that the trial court’s actions fell short of Riggs’
procedural requirements for juror removal after deliberations had begun. 4
The question is whether the court’s error compels a new trial or whether
Durden’s acquiescence to the removal precludes such a remedy.

   To resolve this case, we first lay a contextual foundation by examining
the preservation doctrine and the various error doctrines—harmless,
fundamental, and structural—that determine the scope of appellate
review. We must then decide where along this doctrinal spectrum the
error in this case ultimately falls and whether our invited-error doctrine
permits or precludes appellate review.




4 Had Durden objected to the removal, the State acknowledged at oral argument, and had the
trial court overruled that objection, “reversal would be required.” Oral Arg. Video Tr. at 2:45–
3:08.



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                          Page 5 of 16
I. Scope of Appellate Review
   Criminal defendants enjoy a constitutional right to a “fair trial, not a
perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Indeed,
errors pervade nearly every corner of the law—some passing by
unnoticed, others drawing vigorous objection and protracted litigation.
Roger J. Traynor, The Riddle of Harmless Error ix (1970). The challenge for
courts, whether at the trial level or on appeal, is in distinguishing the
harmless error from the prejudicial one. Id. at 3.


   A. Waiver and Invited Error
   As a preliminary inquiry, appellate courts must first determine whether
the appellant properly preserved the alleged error at the trial level. To
preserve a claim for review, counsel must object to the trial court’s ruling
and state the reasons for that objection. See Halliburton v. State, 1 N.E.3d
670, 678 (Ind. 2013). This gives the court an opportunity to cure the alleged
error, which, in turn, “can result in enormous savings in time, effort and
expense to the parties and the court, including avoiding an appeal and
retrial.” State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). If the trial court
overrules the objection, the appellate court benefits from a sufficiently-
developed record on which to base its decision. Yuval Simchi-Levi,
Preservation: What Is It Good For?, 37 Pace L. Rev. 175, 180–81 (2016).

   A party’s failure to object to an alleged error at trial results in waiver,
also known as “procedural default” or “forfeiture.” Bunch v. State, 778
N.E.2d 1285, 1287 (Ind. 2002). While there are certain exceptions to this
rule, see infra Section I.B., it’s designed to promote fairness “by preventing
a party from sitting idly by,” ostensibly agreeing to a ruling “only to cry
foul” when the court ultimately renders an adverse decision. Hale v. State,
54 N.E.3d 355, 359 (Ind. 2016).

   When the failure to object accompanies the party’s affirmative requests
of the court, “it becomes a question of invited error.” Brewington v. State, 7
N.E.3d 946, 974 (Ind. 2014). This doctrine—based on the legal principle of
estoppel—forbids a party from taking “advantage of an error that she
commits, invites, or which is the natural consequence of her own neglect


Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018          Page 6 of 16
or misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). The
doctrine may apply to a variety of errors the party requested of the trial
court, such as the adoption of an erroneous jury instruction or the
admission of evidence prejudicial to the defendant. See, e.g., Brantley v.
State, 91 N.E.3d 566, 573 (Ind. 2018); Kingery v. State, 659 N.E.2d 490, 494
(Ind. 1995).


    B. The Spectrum of Trial Court Errors

   While the waiver doctrine advances important policies of judicial
efficiency, “mere expediency is not an appropriate appellate goal.” Thomas
v. Thomas, 577 N.E.2d 216, 218 (Ind. 1991). “The objectives of trial
procedure are to secure determinations that are not only speedy and
inexpensive but also just.” Id. (citing Ind. Trial Rule 1). And so, while “the
prudent lawyer will always provide a contemporaneous objection at trial
so as to preserve an issue for appeal, there are occasional exceptions to
this general rule.” Verhorn v. State, 717 N.E.2d 869, 872–73 (Ind. 1999).


       1. Harmless Error
  Harmless trial errors fall at one end of our “broad spectrum.” Brecht v.
Abrahamson, 507 U.S. 619, 640 (1993) (Stevens, J., concurring). An error is
harmless when it results in no prejudice to the “substantial rights” of a
party. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009); Ind. Trial Rule 61. 5
While there are important contextual variations to this rule, 6 the basic
premise holds that a conviction may stand when the error had no bearing




5Indiana Trial Rule 61 requires courts, “at every stage of the proceeding,” to “disregard any
error or defect” that “does not affect the substantial rights of the parties.” Likewise, under
Indiana Appellate Rule 66(A), “[n]o error or defect” in a trial court ruling “is ground for
granting relief or reversal on appeal” when “its probable impact . . . is sufficiently minor so as
not to affect the substantial rights of the parties.”
6For example, an error of a federal-constitutional dimension (rather than a statutory error)
requires the State to prove beyond a reasonable doubt that the alleged error had no effect on
the outcome of the case. Chapman v. California, 386 U.S. 18, 22, 24 (1967); Bush v. State, 775
N.E.2d 309, 311 (Ind. 2002).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                           Page 7 of 16
on the outcome of the case. At its core, the harmless-error rule is a
practical one, embodying “the principle that courts should exercise
judgment in preference to the automatic reversal for error and ignore
errors that do not affect the essential fairness of the trial.” 7 United States v.
Harbin, 250 F.3d 532, 546 (7th Cir. 2001) (internal quotation marks
omitted).


       2. Fundamental Error

   Further along the spectrum are errors we deem “fundamental.” An
error is fundamental, and thus reviewable on appeal, if it “made a fair trial
impossible or constituted a clearly blatant violation of basic and
elementary principles of due process presenting an undeniable and
substantial potential for harm.” Knapp v. State, 9 N.E.3d 1274, 1281 (Ind.
2014) (internal quotation marks omitted). These errors create an exception
to the general rule that a party’s failure to object at trial results in a waiver
of the issue on appeal. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). This
exception, however, is “extremely narrow” and encompasses only errors




7An early twentieth-century legal innovation, the harmless-error rule developed in response
to the strict presumption of prejudice adopted by a majority of appellate courts in the United
States requiring automatic reversal for virtually any error, no matter how trivial. Roger A.
Fairfax, Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless
Error Rule, 93 Marq. L. Rev. 433, 436 (2009). This approach often “led to absurd results, such as
granting convicted murderers new trials because of the misspelling of non-essential words or
other typographical errors in the indictment.” Id. (citing cases). “So great was the threat of
reversal, in many jurisdictions,” the U.S. Supreme Court explained, “that criminal trial
became a game for sowing reversible error in the record, only to have repeated the same
matching of wits when a new trial had been thus obtained.” Kotteakos v. United States, 328 U.S.
750, 759 (1946).
    Indiana’s harmless-error rule, now codified at Trial Rule 61, evolved from case law and
statutes dating back to the late nineteenth century. See, e.g., Smith v. Denman, 48 Ind. 65, 70
(1874) (“If error was committed, it was a harmless one, as it did not in any manner prejudice
the right of the appellants.”). The state’s first harmless-error statute appeared in 1881, adopted
in terms nearly identical to its modern counterpart. See 1881 Ind. Acts 240, 264 (“The Court
must in every stage of the action disregard any error or defect in the pleadings or proceedings
which does not affect the substantial rights of the adverse party, and no judgment can be
reversed or affected by reason of such error or defect.”). See also id. at 357–58 (applying same
rule to an appellate court).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                             Page 8 of 16
so blatant that the trial judge should have acted independently to correct
the situation. Id. At the same time, “if the judge could recognize a viable
reason why an effective attorney might not object, the error is not blatant
enough to constitute fundamental error.” Brewington, 7 N.E.3d at 974.


       3. Structural Error

   At the end of our spectrum lies “a limited class of fundamental
constitutional errors that defy analysis by harmless error standards,” thus
requiring automatic reversal without the need to show prejudice. 8 Neder v.
United States, 527 U.S. 1, 7 (1999) (internal quotation marks omitted). These
errors, known as “structural errors,” affect “the framework within which
the trial proceeds, rather than simply an error in the trial process itself.”
Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

   Some structural errors, such as the deprivation of counsel or defective
reasonable-doubt instructions, always result in prejudicial harm to the
defendant. Weaver v. Massachusetts, ––– U.S. –––, 137 S. Ct. 1899, 1908
(2017) (citing Gideon v. Wainwright, 372 U.S. 335 (1963); Sullivan v.
Louisiana, 508 U.S. 275 (1993)). However, a structural error need “not lead
to fundamental unfairness in every case.” Id. Structural error may arise
when it threatens an interest other than protecting the defendant against
wrongful conviction. Id. at 1910 (noting that the denial of a right to a
public trial may inhibit the First Amendment interests of the press and of
the public at large). Structural error also results if “the precise effect of the
violation cannot be ascertained.” Id. at 1908 (internal quotation marks




8This “limited class” of errors includes the deprivation of the right to counsel at trial, the lack
of an impartial judge, racial discrimination in grand jury selection, denial of the right to pro se
representation, and denial of the right to a public trial. Arizona v. Fulminante, 499 U.S. 279,
309–10 (citing, respectively, Gideon v. Wainwright, 372 U.S. 335 (1963); Tumey v. Ohio, 273 U.S.
510 (1927); Vasquez v. Hillery, 474 U.S. 254 (1986); McKaskle v. Wiggins, 465 U.S. 168 (1984);
Waller v. Georgia, 467 U.S. 39 (1984)). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (defective
reasonable-doubt instructions amount to structural error); United States v. Gonzalez-Lopez, 548
U.S. 140 (2006) (structural error results from deprivation of counsel of one’s choice). For
examples of constitutional errors held subject to harmless-error analysis, see Fulminante, 499
U.S. at 306–07.



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                               Page 9 of 16
omitted) (providing example of when a defendant is denied the right to an
attorney of his or her choice).


II. Application of the Invited-Error Doctrine to
    Claims of Structural Error
   The State argues that Durden’s affirmative agreement with the court’s
procedure to remove and replace Juror 12, for whatever strategic reason,
waived fundamental-error review. The State further contends that, while
the procedure here “was not consistent with the procedures laid out by
this Court” in Riggs, Durden’s actions justified removal, thus precluding
structural error. Pet. to Trans. at 9.

   Durden, in response, argues that, despite his acquiescence, “the
procedure adopted by the trial court to avoid a mistrial” violated his
constitutional right to an impartial jury and a unanimous verdict. 9 Resp. to
Pet. to Trans. at 7. He rejects the State’s assertion that agreeing to Juror
12’s removal amounted to a rational trial strategy. The court’s removal
without justification was “clearly structural error,” he insists, and there is
no basis for the State’s contention that a defendant can waive or invite
such error. Id. at 6.


    A. The trial court’s deficient record resulted in structural
       error.
   Once jury deliberations begin, a court is justified in discharging a juror
“only in the most extreme situations.” Riggs, 809 N.E.2d at 327. Under
these circumstances, the court must demonstrate, through a carefully-
developed record, that removal “is necessary for the integrity of the




9While the U.S. Supreme Court “has never held jury unanimity to be a requisite of due
process of law” in state criminal trials, Johnson v. Louisiana, 406 U.S. 356, 359 (1972), Indiana
“has long required that a verdict of guilty in a criminal case ‘must be unanimous.’” Baker v.
State, 948 N.E.2d 1169, 1173–74 (Ind. 2011) (quoting Fisher v. State, 259 Ind. 633, 646, 291
N.E.2d 76, 82 (1973)).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                            Page 10 of 16
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 327–28. The
court must also (1) avoid questions that affect the juror’s judgment, in case
he or she continues to serve; and (2) in the event of removal, take steps to
minimize any prejudicial impact removal may have had on the remaining
jurors. Id. at 329.

   Here, the trial court expressed concern with Juror 12 “subverting the
integrity of the process.” Tr. Vol. IV, pp. 177–78. But the scant record gives
us little to validate that concern. In fact, the juror’s note indicated at least
an attempt at fulfilling her duties, not a combative disposition toward the
panel or other “extreme modes of conduct.” Riggs, 809 N.E.2d at 328. A
failure to “agree quickl[y] on the charges,” standing alone, provides no
grounds for removal. See id.

   In the event of an impasse like this, our trial rules permit a court, in
consultation with counsel and in the presence of the parties, to “determine
whether and how [it] can assist [the jurors] in their deliberative process.”
Ind. Jury Rule 28. But there is nothing to indicate that the trial court here
made such an effort. See Scott v. State, 829 N.E.2d 161, 168 (Ind. Ct. App.
2005) (failure to interview juror resulted in a record insufficient to justify
removal after deliberations had begun). And in the absence of that
evidence, we have no way of determining whether Juror 12’s conduct
justified removal. See Riggs, 809 N.E.2d at 328.

   The record likewise fails to disclose whether the court, upon removing
Juror 12, took precautionary steps to assess and minimize any prejudicial
impact removal had on the remaining jurors. See Riggs, 809 N.E.2d at 329;
Wright v. State, 12 N.E.3d 314, 320 (Ind. Ct. App. 2014). By ordering the
foreman earlier not to discuss the matter with the other jurors, the court
appears to have taken preliminary steps to avoid conveying any improper
message. But the trial court apparently stopped there—simply excusing
Juror 12, directing the second alternate to participate, and providing no
further instructions to maintain the panel’s “ability to reach a fair and
impartial verdict.” Riggs, 809 N.E.2d at 329 (internal quotation marks
omitted).




Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018          Page 11 of 16
  For these reasons, we conclude that the trial court’s failure to properly
comply with the developed-record requirements set forth in Riggs
amounted to structural error. 10

  This conclusion, however, does not end our inquiry. While the “right to
an impartial jury is the sort of right that requires automatic reversal when
denied,” the “nature, context, and significance of a violation may
determine” otherwise. Harbin, 250 F.3d at 548 (internal quotation marks
omitted).


     B. The invited-error doctrine precludes a remedy for
        Durden’s claim of structural error.
   “The procedure adopted by the trial court to avoid a mistrial was an
egregious abuse of the right to a trial by jury,” Durden asserts, “whether
acquiesced in or not.” Resp. to Pet. to Trans. at 7. He argues that there is
no authority that removes the error here from the scrutiny of structural-
error review. According to Durden, there simply are no circumstances
under which structural error permits anything other than reversal.




10We rest our conclusion here upon the inability to measure the error’s effect, which is one of
“three broad rationales for finding an error to be structural.” Weaver, 137 S. Ct. at 1903. See also
Vasquez, 474 U.S. at 263 (observing that “the effect of the violation cannot be ascertained”
when a “petit jury has been selected upon improper criteria or has been exposed to
prejudicial” factors); United States v. Gaya, 647 F.3d 634, 639 (7th Cir. 2011) (structural error
arises when it becomes difficult if not impossible to determine “how the trial might have gone
had the error not been committed”). In the absence of a record demonstrating the jury’s ability
to reach an impartial verdict, harmless-error analysis simply becomes a futile, “speculative
inquiry into what might have occurred in an alternate universe.” Gonzalez-Lopez, 548 U.S. at
150. Even if removal were justified here, the deficient record fails to indicate otherwise and
thus compels our finding of structural error. See Riggs, 809 N.E.2d at 327 (holding that the
“record is not sufficient to support removal of a juror after deliberations have begun”).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                           Page 12 of 16
   We disagree and find “no reason to exempt ‘structural errors’” from the
invited-error doctrine. 11 United States v. Gaya, 647 F.3d 634, 640 (7th Cir.
2011).

   As a general rule, the denial of a defendant’s right to an impartial jury
requires automatic reversal. Gray, 481 U.S. at 668. But as with all general
rules, even structural rights are “subject to exceptions.” Weaver, 137 S. Ct.
at 1909. Only “where there is an objection at trial and the issue is raised on
direct appeal” is the defendant “entitled to automatic reversal regardless
of the error’s actual effect on the outcome.” Id. at 1910. (emphasis added)
(internal quotation marks omitted). If, however, the “defendant does not
preserve a structural error on direct review,” then he “generally bears the
burden” of showing prejudice. 12 Id.

  The absence of counsel’s objection defeats the policy aims of our
preservation doctrine: “the trial court is deprived of the chance to cure the




11We note that our decision today corresponds with decisions from several other states to
have addressed the issue presented here, either as a general rule or in the context of other
structural errors. See, e.g., Ex parte Thuesen, No. WR-81584-01, 2018 WL 1179875, at *5 (Tex.
Crim. App. Mar. 7, 2018) (“This Court and other courts often apply the doctrine of invited
error to rule against defendants on a wide variety of matters, including errors that might
amount to fundamental or structural errors.”); State v. Cassano, 772 N.E.2d 81, 95 (Ohio 2002)
(concluding that the trial court erred in closing a hearing to the public absent specific findings
justifying such closure but declining reversal since the defendant invited the error by
requesting the closure to begin with in an effort to avoid prejudicial publicity); State v. Benton,
858 N.W.2d 535, 540 (Minn. 2015) (declining to decide whether the trial court committed
structural error by granting defendant’s courtroom closure requests since the alleged errors
were invited by the defendant “and did not seriously affect the fairness, integrity, or public
reputation of the judicial proceedings”).
12 Decisions from both the U.S. Supreme Court and this Court applying the waiver doctrine to

other structural errors lend further support for our decision. See, e.g., Waller v. Georgia, 467 U.S
39, 42 n.2 (1984) (acknowledging that, when a defendant consents to a courtroom closure, he
may be “procedurally barred from seeking relief as a matter of state law”); Faretta v.
California, 422 U.S. 806, 807, 834 n.46 (1975) (noting that, while “a defendant in a state criminal
trial has a constitutional right to proceed without counsel,” he “cannot thereafter complain
that the quality of his own defense amounted to a denial of effective assistance of counsel”)
(internal quotation marks omitted). See also Stephenson v. State, 864 N.E.2d 1022, 1030 (Ind.
2007) (foreclosing defendant’s claim, in a post-conviction proceeding, that his appearance in a
stun belt before the jury constituted structural error since defendant failed to object at trial or
raise the issue on direct appeal).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                            Page 13 of 16
violation,” “the costs and uncertainties of a new trial are greater because
more time will have elapsed in most cases,” and the “finality interest is
more at risk.” Weaver, 137 S. Ct. at 1912. 13 See also Whiting v. State, 969
N.E.2d 24, 32 (Ind. 2012) (declaring that the “policies justifying proper
preservation of nonstructural claims apply with equal force to structural
claims”). 14

   Here, Durden did far more than simply fail to object to the procedure
he now complains of; his defense counsel expressly declined “any
caveats” or special instructions for the jury and repeatedly assured the
court of his approval of the procedure employed, despite its defects.
Durden and his counsel were in the best position to observe Juror 12
throughout the trial and to make a reasoned decision whether to keep her
on the jury. Based on the record before us, we can only conclude that
Durden decided to engage in a rational, albeit unsuccessful, trial
strategy. 15 Any other conclusion runs contrary to our “strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance” at trial. Strickland v. Washington, 466 U.S. 668, 689
(1984).




13 The decision in Weaver applied to a structural error raised as an ineffective-assistance-of-

counsel claim, rather than a structural error preserved and then raised on direct review. See
137 S. Ct. at 1912. However, the Court’s reasoning for requiring a defendant to show prejudice
in the former context suggests that the same showing of prejudice is necessary in the latter
context. See id. (explaining that, when a defendant objects to a structural error at trial, the
court can cure the defect, but when a defendant first raises the error in an ineffective-
assistance claim, the trial court is deprived of such an opportunity).
14 Although Whiting involved a prospective juror, we consider the rationale in that case

apposite. There, defense counsel knew of the juror’s bias during voir dire but, after the trial
court denied a joint challenge for cause, neither party exercised a peremptory strike to remove
the juror, ultimately leading to her empanelment. 969 N.E.2d at 27. On appeal of her
conviction, we held that Whiting, by failing to exhaust her peremptory challenges, had
waived her claim of structural error—the seating of a biased juror. Id. at 35.
15Because defense counsel agreed to the second alternate juror in lieu of the first, we likewise
conclude that Durden waived his argument that the trial court violated Indiana Trial Rule
47(B).



Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018                         Page 14 of 16
Conclusion
   In exercising our discretion to review a constitutional claim, we
recognize that there may be some circumstances where the invited-error
doctrine must yield to the interests of justice. See, e.g., Collins v. State, 835
N.E.2d 1010, 1017 (Ind. Ct. App. 2005) (holding that “an illegal sentence
that is invited nevertheless is subject to the fundamental error exception”).
The decision we reach in this case, however, properly elevates the invited-
error doctrine despite the structural right compromised by the trial court’s
removal procedure. To hold otherwise would permit Durden to attack his
conviction based on an error that he and his defense counsel expressly
agreed to as part of a deliberate trial strategy.

   For the reasons set forth above, we affirm Durden’s conviction.




Rush, C.J., and David, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018           Page 15 of 16
ATTORNEYS FOR APPELLANT
Ruth Ann Johnson
Michael R. Fisher
Marion County Public Defender Agency
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018   Page 16 of 16
