Massa, J.
Criminal defendants enjoy a constitutional right to an impartial jury. U.S. Const. amend. VI; Ind. Const. Art. 1, § 13. …
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.
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 … 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. …
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. 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.” …
The court then replaced Juror 12 with the second alternate. … 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. … 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.
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… 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. …
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).
There is no dispute here that the trial court’s actions fell short of Riggs’ procedural requirements for juror removal after deliberations had begun. The question is whether the court’s error compels a new trial or whether Durden’s acquiescence to the removal precludes such a remedy.
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… 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). …
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). …
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). …
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Once jury deliberations begin, a court is justified in discharging a juror “only in the most extreme situations.” Riggs, 809 N.E.2d at 327. Under these circumstances, the court must demonstrate, through a carefully developed record, that removal “is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the parties[’] right to a trial by jury.” Id. at 327–28. …
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In the event of an impasse like this, our trial rules permit a court, in consultation with counsel and in the presence of the parties, to “determine whether and how [it] can assist [the jurors] in their deliberative process.” Ind. Jury Rule 28. But there is nothing to indicate that the trial court here made such an effort. See Scott v. State, 829 N.E.2d 161, 168 (Ind. Ct. App. 2005) …
The record likewise fails to disclose whether the court, upon removing Juror 12, took precautionary steps to assess and minimize any prejudicial impact removal had on the remaining jurors. See Riggs, 809 N.E.2d at 329; Wright v. State, 12 N.E.3d 314, 320 (Ind. Ct. App. 2014). By ordering the foreman earlier not to discuss the matter with the other jurors, the court appears to have taken preliminary steps to avoid conveying any improper message. But the trial court apparently stopped there—simply excusing Juror 12, directing the second alternate to participate, and providing no further instructions to maintain the panel’s “ability to reach a fair and impartial verdict.” Riggs, 809 N.E.2d at 329 …
For these reasons, we conclude that the trial court’s failure to properly comply with the developed-record requirements set forth in Riggs amounted to structural error.
This conclusion, however, does not end our inquiry. While the “right to an impartial jury is the sort of right that requires automatic reversal when denied,” the “nature, context, and significance of a violation may determine” otherwise. Harbin, 250 F.3d at 548 …
… According to Durden, there simply are no circumstances under which structural error permits anything other than reversal.
We disagree and find “no reason to exempt ‘structural errors’” from the invited-error doctrine. United States v. Gaya, 647 F.3d 634, 640 (7th Cir. 2011).
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… Based on the record before us, we can only conclude that Durden decided to engage in a rational, albeit unsuccessful, trial strategy. Any other conclusion runs contrary to our “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” at trial. Strickland v. Washington, 466 U.S. 668, 689 (1984).
In exercising our discretion to review a constitutional claim, we recognize that there may be some circumstances where the invited-error doctrine must yield to the interests of justice. See, e.g., Collins v. State, 835 N.E.2d 1010, 1017 (Ind. Ct. App. 2005) … The decision we reach in this case, however, properly elevates the invited error doctrine despite the structural right compromised by the trial court’s removal procedure. To hold otherwise would permit Durden to attack his conviction based on an error that he and his defense counsel expressly agreed to as part of a deliberate trial strategy.
For the reasons set forth above, we affirm Durden’s conviction.
Rush, CJ., and David, Slaughter, and Goff, JJ., concur.