Durden v. State

99 N.E.3d 645

Adrian DURDEN, Appellant (Defendant)

v.STATE of Indiana, Appellee (Plaintiff)

Supreme Court Case No. 18S–CR–329

Supreme Court of Indiana.

Filed June 20, 2018

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, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02–1701–CR–188

Massa, Justice

Criminal 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, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring), and its "infraction can never be treated as harmless error." Gray v. Mississippi , 481 U.S. 648, 668, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (internal quotation marks omitted). But is reversal necessary when the violation resulted directly from the defendant's affirmative actions at trial?

In this 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.

Facts and Procedural History

Adrian 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.¹ 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.

With 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.

The 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.

Durden 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.² 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) ;³ and (3) neglecting to admonish the remaining jurors to avoid any prejudicial effect removal may have had on further deliberations.

Our 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. at 1237.

We now grant the State's petition to transfer, thus vacating the Court of Appeals decision. Ind. Appellate Rule 58(A).

Standard of Review

Trial 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 (Ind. 2001).

Beyond 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).

Discussion and Decision

There is no dispute here that the trial court's actions fell short of Riggs ' procedural requirements for juror removal after deliberations had begun.⁴ The question is whether the court's error compels a new trial or whether Durden's acquiescence to the removal precludes such a remedy.

To 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.

I. Scope of Appellate Review

Criminal defendants enjoy a constitutional right to a "fair trial, not a perfect one." Delaware v. Van Arsdall , 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Indeed, errors pervade nearly every corner of the law—some passing by unnoticed, others drawing vigorous objection and protracted litigation. Roger J. Traynor, The Riddle of Harmless Error ix (1970). The challenge for courts, whether at the trial level or on appeal, is in distinguishing the harmless error from the prejudicial one. Id. at 3.

A. Waiver and Invited Error

As a preliminary inquiry, appellate courts must first determine whether the appellant properly preserved the alleged error at the trial level. To preserve a claim for review, counsel must object to the trial court's ruling and state the reasons for that objection. See Halliburton v. State , 1 N.E.3d 670, 678 (Ind. 2013). This gives the court an opportunity to cure the alleged error, which, in turn, "can result in enormous savings in time, effort and expense to the parties and the court, including avoiding an appeal and retrial." State v. Daniels , 680 N.E.2d 829, 835 (Ind. 1997). If the trial court overrules the objection, the appellate court benefits from a sufficiently-developed record on which to base its decision. Yuval Simchi–Levi, Preservation: What Is It Good For? , 37 Pace L. Rev. 175, 180–81 (2016).

A party's failure to object to an alleged error at trial results in waiver, also known as "procedural default" or "forfeiture." Bunch v. State , 778 N.E.2d 1285, 1287 (Ind. 2002). While there are certain exceptions to this rule, see infra Section I.B., it's designed to promote fairness "by preventing a party from sitting idly by," ostensibly agreeing to a ruling "only to cry foul" when the court ultimately renders an adverse decision. Hale v. State , 54 N.E.3d 355, 359 (Ind. 2016).

When the failure to object accompanies the party's affirmative requests of the court, "it becomes a question of invited error." Brewington v. State , 7 N.E.3d 946, 974 (Ind. 2014). This doctrine—based on the legal principle of estoppel—forbids a party from taking "advantage of an error that she commits, invites, or which is the natural consequence of her own neglect or misconduct." Wright v. State , 828 N.E.2d 904, 907 (Ind. 2005). The doctrine may apply to a variety of errors the party requested of the trial court, such as the...