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Durden v. State

Court of Appeals of Indiana

August 31, 2017

Adrian Durden, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal 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 Indianapolis, Indiana

          Brown, Judge.

         [¶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 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.

         [¶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 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 ...

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