Adriаn DURDEN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Court of Appeals Case No. 49A02-1701-CR-188
Court of Appeals of Indiana.
Filed August 31, 2017
1232
ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana
Brown, Judge.
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
In December 2016, Durden was tried by a jury on charges of murder and eight drug-related offenses including conspiracy to commit dеaling 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. Appellants Appendix Volume IV at 64.
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 intо open court, ask him—its 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 way we would be guаranteed 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 well either ask them to write with a different color pen on the remаining verdict forms or ask Mr. (omitted) if his verdict would be the same on the counts theyve already decided or do both.
Transcript Volume IV at 177. The court asked Durdens defense counsel [w]here are you on that, and defense counsel stated I would be more comfortable with, if theyve reached verdicts on some of the counts, to keeping Ms. (omitted) on but if they have not we dont 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, defеnse counsel replied I think just to preserve the integrity of the process, the court stated [w]ell, shes . . . subverting the integrity of the process, and defense counsel said [w]ell, its been an hour and a half, two hours or so. Id. at 177-178.
The court said I think in a situation like this we all have to agree and аsked 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 rеsponded affirmatively, and when asked how many
The bailiff asked the court is he allowed to tell the others, and thе court stated: Tell him to hold it for a moment, dont discuss it. Unless they pound on her I think were 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 courts position as far as bringing out Mr. (оmitted), 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 Id offered up two options, both in the alternative and altogether and you said no. Id. Defense counsel said [w]ell, no, I meant . . . Im curious where they arе, if they were nowhere near anything but—, and the court stated [w]ell, I dont want to bring him out here and say hey, if you had to vote would this thing be over with by now. I dont want to do something like that. Id.
Durdens counsel said [l]et me talk with my client, and the court said [o]kay. Id. Durdens counsel then stated: Judge, we are not oрposed 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 dont think anything—at this point I dont know what would be—what wоuld 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 cant think of anything, Judge and I mean, thats why theres 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 mе to just go in there and say Ms. (omitted), thank you very much for your service, youre released, Mr. (omitted), youre now on our jury and can take part in deliberations, and Durdens counsel replied I think the less traumatic it is the better. Id. at 181. The court stated [w]ell, thats—I prefer it that way but I— and defensе counsel stated I prefer it that way. Id. at 181-182. The court stated I kind of needed your permission if Im 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 thе 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 theyd already reached a verdict and I said you are the jury. You decide that. I think thats aрpropriate. 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
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 objеct 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 courts procedure of skipping over the first alternate available and calling the second violated
The State responds that Durdens аffirmative agreement with the trial courts proposed procedure for responding to Juror No. 12s 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 courts instructions.
Generаlly, 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 potentiаl 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.
The Indiana Supreme Court has stated that removal of a juror after deliberations have begun is ultimately a matter requiring deference to the trial courts judgment, but it raises a number of considerations not present before deliberations begin. Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004). As a result, it demands a carefully developed rеcord 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, 489 U.S. 1032, 109 S.Ct. 1170, 103 L.Ed.2d 228 (1989)). Removal of a juror for misconduct requires more than a refusal to negotiate furthеr. Id.
The Court in Riggs found that [i]t appear[ed] the effect of the jurors 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 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 thаt [the defendant] did not develop a record establishing
Id. at 328-329 (emphasis added). The Court also stated that [r]emoval should be accompаnied by an instruction that removal in no way reflected approval or disapproval of the views expressed by the juror. Id. at 329. Also,
As noted above, the Indiana Supreme Court held in Riggs that unjustified 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), rehg denied, cert. denied, 552 U.S. 1314, 128 S.Ct. 1871, 170 L.Ed.2d 751 (2008). See Weaver v. Massachusetts, — U.S. —, 137 S.Ct. 1899, 1907-1908, 198 L.Ed.2d 420 (2017) (stating that some errors should not be deemed harmless beyond a reаsonable 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 for the same reason, a structural error defies analysis by harmless error standards) (citations omitted).
In this case, the trial court did not question Jurоr 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 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. 12s removal was accompanied by an instruction that her removal in no way reflected approval or disаpproval 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 regаrding Juror No. 12s note. Also, it appears
Conclusion
For the foregoing reasons, we reverse Durdens convictions and remand for a new trial.
Reversed and remanded.
May, J., and Pyle, J., concur.