from the Marion Superior Court The Honorable Grant W.
Hawkins, Judge Trial Court Cause No. 49G05-1505-MR-17228
49G05-1506-F5-19402 49G05-1506-F5-19449 49G05-1506-F5-20230
ATTORNEY FOR APPELLANT 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
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.
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 dealing in a narcotic drug, dealing in a narcotic
drug, and possession of a narcotic drug. Approximately one
hour and forty-four minutes after the jury began its
deliberations,  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.
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 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.
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.
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.
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."
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 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
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 ...