VAIDIK, J.
During the State’s case-in-chief, during a break between witnesses, Caruthers’ counsel made the following statement:
There apparently is some information afloat which I would characterize as somewhat a thinly veiled allegation of jury tampering, and that concerns me greatly. Apparently, someone somewhere has received information from a juror or jurors that one or more of them, the jurors, are feeling intimidated by actions that such juror or jurors attribute to my client. I wanted to make a record on that, Your Honor, because I think it’s a very serious allegation and I just – I am thankful that the Court has given me an opportunity to do so.
Tr. p. 499-500. Defense counsel did not ask the court to interrogate the jury regarding the possible threats or otherwise provide a factual basis for the allegation and did not ask for a mistrial. Nor did the trial court take any action sua sponte at that time to address the issue. The topic did not arise again until sentencing, when the trial court stated the following:
Before we proceed to sentencing, I want to make a record on something. During the trial, an issue was raised by the defense that there was information concerning what was loosely referred to as jury tampering. Members of the jury did express security concerns on more than one occasion to the bailiff as a result of various family members of the victim, of the defendant, as well as the defendant himself. In response, the Court arranged for extra security and alternate parking in front of exit and entrance for the jurors. To allay the jurors [sic] concerns, the Court did personally inform the jurors of the additional security precautions that were in place and instructed them on the ministerial aspects of the precautions. At no time did any juror express to the Court that they had been personally approached or threatened after the security precautions were put in place and the concerns regarding personal safety were expressed to the bailiff or made known to the Court.
Sent. Tr. p. 1.
Caruthers failed to either ask the trial court to interrogate the jury or otherwise object to the ameliorative actions taken by the trial court to allay the jury’s concerns about security. Nevertheless, Caruthers argues that the trial court’s failure to sua sponte initiate an investigation into the possible threats constituted fundamental error that violated his right to an impartial jury.
. . . .
In McDaniel, Owen, and Joyner, the trial court questioned the jurors as to possible bias after the defendant moved for a polling of the jury, a mistrial, or both. Here, the trial court did not conduct an investigation because the defense failed to request either interrogation of the jurors or a mistrial. Nonetheless, the trial court has an obligation to ensure that a defendant’s right to an impartial jury is not violated. . . . Our Supreme Court described the contours of this obligation in Lindsey. There, the defendant moved for a mistrial without asking to have the jury polled to determine which jurors, if any, had been exposed to a newspaper story about the case. The Court stated that the request for a mistrial and the colloquy that followed brought the problems to the attention of the trial judge and then described the judge’s resulting obligation:
The threat of prejudice being substantial, the prime consideration of the trial judge should have been to protect the integrity of the trial and not to salvage it. That obligation may be satisfied only by taking the best reasonably available steps to assure a verdict free of improper influences and not by proceeding upon the assumption that all may be well and that, if not, it will be detected and rectified later.
Lindsey, 295 N.E.2d at 824. Although the defendant in Lindsey did not ask to have the jury polled to determine which jurors had been exposed to the prejudicial publication, the Court concluded that the defendant was entitled to have the jury polled and that the trial court abused its discretion by failing to take reasonably available steps to ensure that the verdict was free from improper influences.
Likewise here, the trial court did not take reasonably available steps to investigate an allegation of threats which the trial court found credible enough to prompt extra security measures. The jurors themselves expressed that they felt intimidated, demonstrating that some of them had been exposed to possible threats. Upon learning of the possibility that some of the jurors felt intimidated by actions they attributed to Caruthers, Caruthers’ family, or Turner’s family, the trial court did not interrogate the jury either to determine the content of the possible threatening actions or statements or to determine how many of the jurors felt intimidated. Nor did the trial court query whether the affected jurors believed they could remain impartial or ask whether any out-of-court statements were made to them about the case.
Because no substantive record was made on this issue, we do not know either what occurred to cause at least some of the jurors to feel threatened or how prejudicial these occurrences might have been. [Footnote omitted.] But we do know that the trial court did not view the threats as imaginary or remote; indeed, the trial court recognized at sentencing that members of the jury had expressed security concerns on more than one occasion based on fears they had about the victim’s family, Caruthers’ family, and Caruthers himself and that it had taken action by ordering extra security and alternate parking arrangements. Although it was commendable for the trial court to take action to protect the jury’s safety, the trial court’s actions, without further investigation into the possible threats, could have led the jurors, including any jurors not directly exposed to threats, to believe that the judge believed that they were in danger and that they were, in fact, genuinely in danger. Nonetheless, the trial court did not address any prejudicial effects this might have had on Caruthers’ right to an impartial jury. We recognize that the trial court is in the best position to assess a jury’s impartiality, Spears v. State, 811 N.E.2d 485, 490 (Ind. Ct. App. 2004), but here the trial court did not investigate the extent or nature of the threats or the jury’s impartiality once it became apparent to the trial court that the jury felt intimidated. Under these circumstances, we conclude that the trial court abused its discretion by failing to investigate and this failure constituted fundamental error.
NAJAM, J., concurs.
FRIEDLANDER, J., dissents with separate opinion:
Moving now to the conclusion that the trial court committed fundamental error in failing to initiate an inquiry into jury intimidation, as I see it, the Majority opinion in effect creates a rule that the failure to employ Lindsey procedures in cases such as this is per se fundamental, and thus reversible, error. I draw this conclusion from the Majority’s rejection of the State’s harmless error argument. . . . The State claims the doctrine applies here to defeat Caruthers’s claim of fundamental error, and I agree.
. . . [T]he evidence of guilt was considerable, even overwhelming. The Majority acknowledges the strength of the evidence in determining that Caruthers may be retried consistent with double jeopardy principles.
. . . In my view, although the court should have inquired further as to the effect on the jury, if any, of the alleged actions, the failure to do so did not rise to the level of fundamental error. Thus, I would dispose of this argument by noting that it has not been preserved. See Carter v. State, 754 N.E.2d 877 (Ind. 2001) (an appellate court need only expound upon those contentions of fundamental error that it thinks warrant relief; otherwise, it is enough to note that the claim has not been preserved), cert. denied, 537 U.S. 831 (2002). I would affirm the conviction.