SCOTT A. WRIGHT, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff
APPEAL FROM THE LAKE SUPERIOR COURT. The Honorable Salvador Vasquez, Judge, The Honorable Natalie Bokota, Magistrate. Cause No. 45G01-1207-FA-17.
ATTORNEYS FOR APPELLANT: SCOTT KING, RUSSELL W. BROWN, JR., Scott King Group, Merrillville, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; JODI KATHRYN STEIN, Deputy Attorney General, Indianapolis, Indiana.
VAIDIK, C.J., and BAKER, J., concur.
Scott A. Wright was found guilty of Class A felony child molesting after the trial court, during jury deliberations, replaced the sole juror who would have voted to find Wright not guilty. Replacement of the juror was error under the facts before us, and the jury was not properly instructed that removal did not reflect approval or disapproval of the juror's views. We accordingly vacate Wright's conviction and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
Wright's jury trial commenced in August 2013. About two hours after the jury began to deliberate, the trial court received a note that said " We are at a standstill. We are 11 out of 12 guilty. One is voting not guilty and is not willing to change his mind." (Tr. at 288.) The court told the jurors to continue to deliberate and try to reach a verdict. About an hour later another note to the court said, " Still at a standstill. Nothing will change his mind." ( Id. at 291.)
The court called the jurors back into the courtroom and asked if there was anything it could do to assist them or any questions it could answer. The jury indicated it had no questions but that the vote had not changed and " [o]ne juror feels like he is being bullied into changing his mind. He has suggested he will change his mind just to please us." ( Id. at 297.) The court responded, " Your dinner is on the way. Please reread the instructions." ( Id.) The next communication was that the holdout juror " will not talk and seems to be falling asleep at times. We cannot deliberate if he will not talk to us and he told us he does not want to talk." ( Id. at 297-98.)
The court noted the State had indicated it thought a male juror was starting to fall asleep during closing argument and the State was " thinking or inferring or speculating it might be the same juror." ( Id. at 298.) The State confirmed it noticed
the juror might have been sleeping but it " couldn't be sure if he was closing his eyes to listen." ( Id.) It told the court, " we need to switch this juror in seat number one out with an alternate to make sure we have a juror who's heard all the evidence, who's heard all the deliberations and replace the juror who is refusing to deliberate." ( Id. at 299.)
The court declined to do so at that time, then called the jury foreperson into the courtroom. The foreperson, said the juror would not deliberate: " He was talking at the beginning, but within probably the last hour has not said a single word to us. We cannot deliberate with him," ( id. at 304), and he " was dozing off." ( Id. at 303.) Wright's counsel asked the foreperson " he just wouldn't change his mind after people were trying to sway him?" The foreperson responded, " Correct, and he did make probably three or four comments that he will make up his mind just so he could go home." ( Id. at 307.) Another juror told the court, " He's just quiet and dozing off, making small talk about other things other than what we need to be speaking about." ( Id. at 310.)
The court then said, " if it were just an issue of someone who disagrees with the other jurors, we of course -- we wouldn't replace that person," ( id. at 317), but the juror " has stopped deliberating. It's one thing to stick to your guns, it's another to refuse to participate in the cooperative effort of deliberation." ( Id. at 317.) It questioned the other jurors individually about the holdout juror. Most indicated he had dozed off at some points and was no longer deliberating, but some testified he had earlier explained his position, he fully understood what was going on, and he " did speak his mind and say why he was voting the way he was." ( Id. at 336.) The court granted the State's motion. It replaced Juror 356 with an alternate, and Wright was then found guilty.
DISCUSSION AND DECISION
1. Replacement of Juror 356
Indiana Trial Rule 47 provides: " Alternate jurors . . . 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." Removing an impartial juror who has voted to acquit based on the evidence presented at trial and on the juror's life experiences " gravely imperil[s]" a defendant. Gavin v. State, 671 N.E.2d 440, 447 (Ind.Ct.App. 1996). A trial court has broad discretion to remove a juror before deliberations begin, but removing a dissenting juror after that point implicates the defendant's right to a unanimous verdict and the defendant's right to a jury trial. Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).
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 deliberations begin. Id. 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 have begun, discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror (1) is necessary for the integrity of the ...