Convicted murderer to get new trial

A Marion County man convicted of murder and multiple drug charges will receive a new trial after the Indiana Court of Appeals determined the trial court erred by dismissing a juror nearly two hours after deliberations had begun.

In Adrian Durden v. State of Indiana, 49A02-1701-CR-188, Adrian Durden was tried in December 2016 for murder and eight drug-related offenses. Roughly one hour and 40 minutes into jury deliberations, Juror 12 sent a note to the judge asking to be excused from the case because the juror “just (couldn’t) come to a decision on the charges.”

The Marion Superior Court devised a plan in which Juror 12 would be dismissed if no verdict had been reached on any count and the second alternate would replace her to ensure one black person remained on the jury. If a verdict was reached on any count, then the court would ask the second alternate if his verdict would be the same on any of the counts that had been decided. Durden’s counsel, however, said he wanted Juror 12 to remain on the jury if a verdict had been reached on any count, but would not have a problem removing her if no verdict had been reached.

The jury foreman was then brought in, indicated he knew Juror 12 had sent the note and said the jury had reached a verdict on six counts. However, deliberations on the murder charge had not yet begun.

After further conversations with Durden’s counsel, Juror 12 was released and the second alternate was brought in. The new jury was given discretion to decide whether further deliberations were needed on the counts that had already been decided.

Durden was then found guilty as charged, so he appealed, arguing the removal of Juror 12 after deliberations had begun warranted reversal. The Indiana Court of Appeals agreed Thursday, with Judge Elaine Brown noting that the trial court failed to question Juror 12 on the record to determine if she refused to negotiate further or failed to agree with the other jurors.

Further, none of the other jurors were questioned on the record about the impact of removing Juror 12, Brown wrote. There also was no record of the trial court instructing the remaining jurors that her removal was not an approval or disapproval of her views, as is required by Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).

“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 the outcome,’” Brown wrote. “On the record before us, we conclude that Durden has established that reversal is warranted.”