Brown, J.
Adrian Durden appeals his conviction for murder. Durden raises one issue which we revise and restate as whether the removal of a juror after the jury had begun its deliberations requires reversal. We reverse and remand.
In December 2016, Durden was tried by a jury on charges of murder and eight drug-related offenses including conspiracy to commit dealing in a narcotic drug, dealing in a narcotic drug, and possession of a narcotic drug. Approximately one hour and forty-four minutes after the jury began its deliberations, one of the jurors (“Juror No. 12”) sent a handwritten note to the trial court which read: “Judge I would like to be excused from this case I can not agree quickley [sic] on the charges. I just cant [sic] come to a decision on the charges.”
The trial court stated on the record:
I talked with the lawyers in chambers. The process upon which you agreed was to invite the foreperson into open court, ask him … if a verdict has been reached on any count. If no verdict has been reached on any count I think we agreed to excuse Ms. (omitted) and put Mr. (omitted) in her place. That way we would be guaranteed of one African-American on our jury. Mr. (omitted) would be our remaining alternate. If they have reached a verdict on any counts then the question is how we handle it and I think the first part of the discussion was we’ll either ask them to write with a different color pen on the remaining verdict forms or ask Mr. (omitted) if his verdict would be the same on the counts they’ve already decided or do both.
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The court said “I think in a situation like this we all have to agree” and asked that the jury foreperson be brought into the courtroom. When asked if he knew that another juror had sent a note indicating she wanted to be excused from the case, the jury foreperson responded affirmatively. When asked if the jury had agreed on any counts yet, he responded affirmatively, and when asked how many counts, he indicated six counts. The court asked if there was a verdict on the murder charge, and the foreperson replied “no, that’s one we’re waiting to do.” Id. at 179. The jury foreperson returned to the jury room.
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Durden’s counsel said “[l]et me talk with my client,” and the court said “[o]kay.” Id. Durden’s counsel then stated: “Judge, we are not opposed to having juror number 12 excused, being replaced by the second alternate, Mr. (omitted).”
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… The jury found Durden guilty of murder and the eight drug-related counts.
The issue is whether the removal of Juror No. 12 after the jury had begun its deliberations requires reversal. …
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The Indiana Supreme Court has stated that 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. Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004). …
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In this case, the trial court did not question Juror No. 12 on the record regarding her note to determine if she refused to negotiate further or failed to agree with the other jurors. … Further, the court did not question any of the jurors on the record regarding the potential impact of the removal of the juror, and the record does not show that Juror No. 12’s removal was accompanied by an instruction that her removal in no way reflected approval or disapproval of the views expressed by her. See Riggs, 809 N.E.2d at 329 (removal should be accompanied by such an instruction). We additionally observe that the trial judge stated that he had spoken with the lawyers in chambers, and the record does not include these communications regarding Juror No. 12’s note. Also, it appears from the record that the trial judge personally entered the jury room to release Juror No. 12, and thus the record does not reflect any statements the judge may have made to the jurors. With respect to the State’s argument that Durden has not shown how it was impossible for the jury to fairly return a verdict on the law and that his defense counsel agreed to Juror No. 12’s removal, we observe that the Court in Riggs stated that unjustified removal constitutes “structural error” and that “it is not up to the parties to show prejudice as to the outcome.” … On the record before us, we conclude that Durden has established that reversal is warranted.
For the foregoing reasons, we reverse Durden’s convictions and remand for a new trial.
Reversed and remanded.
May, J., and Pyle, J., concur.