Argued: December 19, 2017
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
Petition to Transfer from the Indiana Court of Appeals No.
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
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?
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.
and Procedural History
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.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 the process, " stated
that "in a situation like this we all have to
agree." Id. at 177-78.
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.
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.
appealed his murder conviction, arguing that, despite his
acquiescence, the court's procedure violated his
constitutional right to an impartial jury, thus resulting in
reversible error. 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);  and (3) neglecting to admonish the
remaining jurors to avoid any prejudicial effect removal may
have had on further deliberations.
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.
grant the State's petition to transfer, thus vacating the
Court of Appeals decision. Ind. Appellate Rule 58(A).
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, 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
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).
is no dispute here that the trial court's actions fell
short of Riggs' procedural requirements for
juror removal after deliberations had begun.The question is
whether the court's error compels a new trial or whether
Durden's acquiescence to the removal precludes such a
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.
Scope of ...