Brown, J.
At approximately 6:00 P.M., the foreperson asked the bailiff “if they were to stay and deliberate until they reached a 100 percent agreement with the counts.” Transcript at 355. The bailiff stated: “yes as the Judge stated in there you have to be 100 percent in agreement.” Id. at 355-356. The foreperson stated “okay” and returned to the jury room. Id. at 356. The jury returned to deliberations and then asked again to review the video. The court played the video again.
The jury found Sowers not responsible by reason of insanity on Count I, battery as a class C felony, and guilty but mentally ill of Count II, criminal recklessness as a class D felony, and Count III, resisting law enforcement as a class D felony. Sowers’s counsel asked to poll the jury. When asked whether those were her true verdicts, Juror No. 3 stated: “I have a conscience about it but yes.” Id. at 320.
Sowers waived the right to a jury trial with respect to the habitual offender allegation. The court then discharged the jury. The prosecutor asked the jury if he could speak with the jurors to talk about the case. Sowers’s counsel indicated that he had other matters immediately after the trial and was not going to be able to talk to them but advised the jury to share their thoughts with the prosecutor. The court then found Sowers to be an habitual felony offender.
The prosecutor informed the court that there was an interaction between a juror and the bailiff. Specifically, the prosecutor stated:
In the period of time immediately following the release of the jury, not immediately a few minutes after I went back to talk to the jurors, I believe that all 12 of the jurors were still present. Also back in the jury room with me were Deputy Hammond of the Carroll County Sheriff’s Department and Master Trooper Larry E. Mote of the Indiana State Police. During the course of my discussion with the jury I asked the jurors if they had any questions for me. A juror that I know to be from the trial proceedings to be Linda Overman, asked me a question, I don’t know precisely the phrasing of the question but it was something in the general manner or did we have to reach a verdict? And I explained that criminal jury verdicts must be unanimous however it’s not absolutely true that there must be a verdict in that if there’s not a unanimous verdict and there’s a hung jury after a sufficient amount of time the court would declare a mistrial and the trial would be set off perhaps re-tried. The juror, Linda Overman, expressed unhappiness and said that they had been told and I don’t know exactly the phrase she used they had been told that there had to be verdicts. And I asked Ms. Overman if she had put anything in writing and sent a note to the court. I did not recall such a note, she said no she had not. I asked her if she had received any written notes from the court on the subjects. She said no she had not. I asked her if she spoke to anyone about it she said no the foreperson had talked to the bailiff. The foreperson was there, Ms. Mrs. Minier, and Mrs. Minier either said yes she had or she nodded her head that she acknowledged that she had talked to the bailiff. I did not ask Ms. Overman or Ms. Mrs. Minier what the conversation was in large part because I felt that that probably should be done in the context if the defense felt in the context where the parties would be under oath and I did not discuss with them any further to the best of my memory as to what the proper procedure should have been. Except only to express my explanation to Ms. Overman that there did not have to be a verdict in a particular criminal trial.
Id. at 349-350. Upon direct examination by Sowers’s counsel, the prosecutor stated that it was his impression that the foreperson took the information from the bailiff back to the jury. The following exchange then occurred:
Defense Counsel: Is it your understanding that once that information was communicated that Mr. [sic] Overman at least took a course of action based upon that information?
Prosecutor: I can’t know that she took a particular course of action but her statements gave me the impression that she felt that that was a very important piece of information that that she might have proceeded differently. I can’t say exactly how she phrased that.
Defense Counsel: She was in fact the juror that was hesitate [sic] when pulled [sic] following the jury verdict being read?
Prosecutor: She is the same person that expressed some question about her conscience when she was originally pulled. [sic] I don’t remember exactly how she phrased it but we are talking about the same women [sic] on the jury yes.
Defense Counsel: And your impression was that had that information not been provided to her she would have taken a different course of action or she would have understood different courses of action were available to her?
Prosecutor: The real impression I had was that my explanation that one vote for guilty or one vote for not guilty could hold up to a jury verdict was important to her in that she that was not the way that she had understood what she had been told.
Defense Counsel: Was it your impression that she could not hold out, I mean lack of a better phrase, that she had to make a decision with the jury rather than hold out. Was that your impression?
Prosecutor: Not being able to tell what’s in her mind that was the impression that I got from her statements.
Id. at 352-353.
The court then questioned the bailiff. The bailiff testified that Pam Minier, the person he believed to be the foreperson, asked “if they were to stay and deliberate until they reached a 100 percent agreement with the counts.” Id. at 355. The bailiff stated: “yes as the Judge stated in there you have to be 100 percent in agreement.” Id. at 355-356. The bailiff also indicated that he did not instruct the jury to put the question in writing and that Minier stated “okay” and returned to the jury room. Id. at 356. The bailiff also was not sure whether the other jurors heard his answer. After Sowers’s counsel questioned the bailiff, the court asked the parties whether any further record needed to be made, and the prosecutor and Sowers’s counsel indicated that no further record was necessary. The court then scheduled a sentencing hearing.
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Here, we observe that the question was not whether the jurors had to reach 100 percent agreement to reach a verdict, but whether “they were to stay and deliberate until they reached a 100 percent agreement with the counts.” Transcript at 355. Further, the record reveals that the bailiff’s comment was told to the foreperson and shared with at least Juror Overman. The prosecutor stated that Juror Overman “said that they had been told and I don’t know exactly the phrase she used they had been told that there had to be verdicts.” Id. at 350 (emphases added). The prosecutor also stated that it was his impression that that the foreperson took the information from the bailiff back to the jury.
With respect to the impact of the bailiff’s comment, we observe that Juror Overman expressed unhappiness when the prosecutor informed her that a hung jury and a mistrial were a possibility. Further, the prosecutor stated that Juror Overman’s statements gave him “the impression that she felt that that was a very important piece of information that that she might have proceeded differently.” Id. at 352 (emphasis added). The prosecutor stated that “[t]he real impression I had was that my explanation that one vote for guilty or one vote for not guilty could hold up to a jury verdict was important to her in that she that was not the way that she had understood what she had been told.” Id. at 353 (emphasis added). The prosecutor acknowledged that Juror Overman was the juror that expressed some question about her conscience when she was originally polled. Lastly, the prosecutor indicated that it was his impression from Juror Overman’s statements that she had to make a decision with the jury rather than hold out. Under the circumstances, we conclude that the error constitutes a blatant violation of basic principles and that the harm or potential for harm is substantial, and the error denied Sowers fundamental due process.
RILEY, J., concurs.
BRADFORD, J., dissents with separate opinion:
While it was error for the bailiff to communicate with the jury about the law applicable to the case without notifying the trial court or relaying the jury’s question to the trial court, it was not fundamental error. Sowers concedes that he did not object to or request a mistrial because of the conversation that took place between the jury foreperson and the bailiff when given an opportunity to do so before the trial court. As such, Sowers has waived this claim on appeal unless he can show that the erroneous conversation amounted to fundamental error.