May, J.
Wright’s jury trial commenced in August 2013. About two hours after the jury began to deliberate, the trial court received a note that said “We are at a standstill. We are 11 out of 12 guilty. One is voting not guilty and is not willing to change his mind.” (Tr. at 288.) The court told the jurors to continue to deliberate and try to reach a verdict. About an hour later another note to the court said, “Still at a standstill. Nothing will change his mind.” (Id. at 291.)
The court called the jurors back into the courtroom and asked if there was anything it could do to assist them or any questions it could answer. The jury indicated it had no questions but that the vote had not changed and “[o]ne juror feels like he is being bullied into changing his mind. He has suggested he will change his mind just to please us.” (Id. at 297.) The court responded, “Your dinner is on the way. Please reread the instructions.” (Id.) The next communication was that the holdout juror “will not talk and seems to be falling asleep at times. We cannot deliberate if he will not talk to us and he told us he does not want to talk.” (Id. at 297-98.)
The court noted the State had indicated it thought a male juror was starting to fall asleep during closing argument and the State was “thinking or inferring or speculating it might be the same juror.” (Id. at 298.) The State confirmed it noticed the juror might have been sleeping but it “couldn’t be sure if he was closing his eyes to listen.” (Id.) It told the court, “we need to switch this juror in seat number one out with an alternate to make sure we have a juror who’s heard all the evidence, who’s heard all the deliberations and replace the juror who is refusing to deliberate.” (Id. at 299.)
The court declined to do so at that time, then called the jury foreperson into the courtroom. The foreperson, said the juror would not deliberate: “He was talking at the beginning, but within probably the last hour has not said a single word to us. We cannot deliberate with him,” (id. at 304), and he “was dozing off.” (Id. at 303.) Wright’s counsel asked the foreperson “he just wouldn’t change his mind after people were trying to sway him?” The foreperson responded, “Correct, and he did make probably three or four comments that he will make up his mind just so he could go home.” (Id. at 307.) Another juror told the court, “He’s just quiet and dozing off, making small talk about other things other than what we need to be speaking about.” (Id. at 310.)
The court then said, “if it were just an issue of someone who disagrees with the other jurors, we of course – we wouldn’t replace that person,” (id. at 317), but the juror “has stopped deliberating. It’s one thing to stick to your guns, it’s another to refuse to participate in the cooperative effort of deliberation.” (Id. at 317.) It questioned the other jurors individually about the holdout juror. Most indicated he had dozed off at some points and was no longer deliberating, but some testified he had earlier explained his position, he fully understood what was going on, and he “did speak his mind and say why he was voting the way he was.” (Id. at 336.) The court granted the State’s motion. It replaced Juror 356 with an alternate, and Wright was then found guilty.
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Removal of a juror after deliberations have begun is ultimately a matter requiring deference to the trial court’s judgment, but it raises a number of considerations not present before deliberations begin. Id. As a result, it demands a carefully developed record as to the grounds for removal and also requires precautions to avoid inappropriate consequences from the removal. Id. Once deliberations have begun, discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror (1) is necessary for the integrity of the process, (2) does not prejudice the deliberations of the rest of the panel, and (3) does not impair the party’s right to a trial by jury. Id. at 328-29.
A failure to agree, however unreasonable, is a ground for mistrial, not removal of the obstacle to unanimity. Id. at 328. “That a juror may not be removed because he or she disagrees with the other jurors as to the merits of a case requires no citation.” Id. (quoting United States v. Hernandez, 862 F.2d 17, 23 (2d Cir. 1988), cert. denied sub nom Quinones v. United States, 489 U.S. 1032 (1989)). Removal of a juror for misconduct requires more than a refusal to negotiate further. Id. If there were a showing of physical confrontation or attempts to intimidate other jurors, then removal may be permissible. Id.
The trial court removed Juror 356 because he “was dozing during the deliberation process” and
when he’s been asked questions by the other jurors which is their right and duty to understand his position, that is the crux of the deliberative process, he’s not responding. He won’t answer. So he has stopped deliberating. It’s one thing to stick to your guns, it’s another to refuse to participate in the cooperative effort of deliberation.
(Tr. at 317.)
We find instructive the discussion of what is “refusal to deliberate” in People v. Cleveland, 21 P.3d 1225, 1237-38 (Cal. 2001):
[P]roper grounds for removing a deliberating juror include refusal to deliberate. A refusal to deliberate consists of a juror’s unwillingness to engage in the deliberative process; that is, he or she will not participate in discussions with fellow jurors by listening to their views and by expressing his or her own views. Examples of refusal to deliberate include, but are not limited to, expressing a fixed conclusion at the beginning of deliberations and refusing to consider other points of view, refusing to speak to other jurors, and attempting to separate oneself physically from the remainder of the jury. The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge. A juror who has participated in deliberations for a reasonable period of time may not be discharged for refusing to deliberate, simply because the juror expresses the belief that further discussion will not alter his or her views.
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In the case before us, as in Gavin, “the trial judge went to exemplary lengths to try to follow appropriate procedures,” id., but it is apparent from the record that Juror 356, like the juror in Gavin, was “an impartial juror who has voted to acquit based upon the evidence presented at trial,” id., who should not have been dismissed.
The State distinguishes Riggs and Gavin on the premise Wright’s holdout juror made up his mind before he had heard all the evidence and would not deliberate after that point: [Footnote omitted.]
[T]his was not a situation where Juror 356 discussed the evidence with the other jurors, then came to a not-guilty conclusion, which he then refused to reconsider. That would be a Riggs situation, where removal is improperly done to avoid a hung jury. . . . In both Riggs and Gavin, the removed juror had engaged in deliberations with the other jurors, had considered the evidence, but had rendered the sole not-guilty vote. That situation simply was not present here, where Juror 356 decided his vote before the evidence was completed and would not deliberate the rest of the evidence with the other jurors. Juror 356’s refusal to consider the evidence and engage in deliberations created the extreme situation where the integrity of the process was severely compromised.
(Br. of Appellee at 18.)
The State notes the trial court’s “carefully developed record,” (Br. of Appellee at 11), which it characterizes as reflecting “the other eleven jurors informed the trial court that Juror 356 had refused to engage in deliberations” and Juror 356 decided the victim had lied and made his decision before all the evidence was presented. Id. That Juror 356 “decided his vote before the evidence was completed and would not deliberate,” (id. at 18), is not, as the State suggests, undisputed. One juror the court interviewed said “in the deliberation room, he is participating, but he seems to be . . . shutting down a little bit because he feels somewhat intimidated by the fact that he’s not agreeing with the rest of us. . . . He’s expressing his views and he’s given his one specific reason why he gave his vote.” (Tr. at 330-31.) Another juror, when asked if Juror 356 was participating, answered “Participating, not participating at times.” (Id. at 349.)
We cannot find dismissal of Juror 356 was justified on the ground he would have found Wright not guilty because he believed the victim lied. The jury is the sole judge of the credibility of a witness and we have no right to invade that province. Pritchard v. State, 248 Ind. 566, 569, 230 N.E.2d 416, 418 (1967). Nor can we agree with the State’s assertion at oral argument that the juror’s refusal to deliberate was a trial court finding of fact to which we must defer. We believe “refusal to deliberate” is better characterized as a conclusion of law the trial court reached based on facts concerning the juror’s actions or inaction, which conclusion we review de novo. . . . .
. . . .
Juror 356 voted for acquittal based on his determination the victim was not credible, and he would not change his mind. His behavior does not fall within the category the Riggs Court characterized as “the most extreme situations where it can be shown that the removal of the juror (1) is necessary for the integrity of the process, (2) does not prejudice the deliberations of the rest of the panel, and (3) does not impair the party’s right to a trial by jury.” 809 N.E.2d at 328-29. Replacement of Juror 356 was error.
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It was also error not to instruct the jury that removal of Juror 356 did not suggest the court’s disagreement with the juror’s views on the merits of the case. The Riggs Court noted removal of a juror should be accompanied by an instruction that removal in no way reflected approval or disapproval of the views expressed by the juror: “[T]he trial court must be careful not to convey improper messages, either verbal or silent, to the other jurors, who may infer that the juror was dismissed because of his or her view of the case.” 809 N.E.2d at 329. There, the judge asked each juror, in the presence of the full jury, whether the removal of the juror would “in some way interfere” with the juror’s “ability to reach a fair and impartial verdict,” and each responded “no.” Id. The Riggs Court determined that “general inquiry did not focus sufficiently on the problem of the potential effect of the removal on the jury. A juror might well conclude that the removal of Wallace implied disagreement with Wallace’s views on the merits of the case.” Id.
No such instruction was given to Wright’s jury. We agree with Wright that the newly constituted jury therefore could have interpreted the removal of Juror 356 “as a comment by the trial court on its view of the evidence. . . . all the jurors knew that Juror #356 voted for not guilty and knew that the basis for this vote was his disbelief of the victim’s testimony.” (Br. of Appellant at 14.)
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We vacate Wright’s conviction and remand for a new trial.
VAIDIK, C.J., and BAKER, J., concur.