Adrian Durden v. State of Indiana

FILED

Jun 20 2018, 10:21 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 18S-CR-329

Adrian Durden

Appellant (Defendant)

–v–

State of Indiana

Appellee (Plaintiff)

Argued: December 19, 2017 | Decided: June 20, 2018

Appeal from the Marion Superior Court

Nos. 49G05-1505-MR-17228

49G05-1506-F5-19402

49G05-1506-F5-19449

49G05-1506-F5-20230

The Honorable Grant W. Hawkins, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 49A02-1701-CR-188

Opinion by Justice Massa

Chief Justice Rush, Justice David, Justice Slaughter, and Justice Goff concur.

Massa, Justice

Criminal defendants enjoy a constitutional right to an impartial jury.

U.S. Const. amend. VI; Ind. Const. Art. 1, § 13. This right “is a structural

guarantee,” Carella v. California, 491 U.S. 263, 268 (1989) (Scalia, J.,

concurring), and its “infraction can never be treated as harmless error.”

Gray v. Mississippi, 481 U.S. 648, 668 (1987) (internal quotation marks

omitted). But is reversal necessary when the violation resulted directly

from the defendant’s affirmative actions at trial?

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.

Facts and Procedural History

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 because she “[could] not agree quickl[y] on the charges [or] come

to a decision on the charges.” Appellant’s App. Vol. IV, p.64. 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. 1

However, Durden’s lawyer expressed a preference for keeping Juror 12 if

the panel had “reached verdicts on some of the counts.” Tr. Vol. IV, p.177.

The court, after commenting that Juror 12 was “subverting the integrity of

1The court and counsel agreed to the second alternate juror instead of the first so that they

“would be guaranteed of one African-American on [the] jury.” Tr. Vol. IV, p.177. See Batson v.

Kentucky, 476 U.S. 79, 97 (1986) (prohibiting racial discrimination in the selection of jurors).

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the process,” stated that “in a situation like this we all have to agree.” Id.

at 177–78.

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. Id.

at 177–79. 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.” Id. at 180. The judge

asked whether defense counsel had “any caveats” or special instructions

for the jury. Id. at 180–81. Defense counsel declined, replying that he

“[could]n’t think of anything” and “that’s why there’s an alternate, I

guess.” Id. at 181. To clarify the procedure, the judge then asked whether

he should simply “go in there” to excuse Juror 12, thank her for her

service, and then instruct the alternate to participate in deliberations. Id. “I

think the less traumatic it is the better,” defense counsel replied, “I prefer

it that way.” Id. at 181–82. “I kind of needed your permission if I’m not

doing it on the record,” the judge stated, seeking assurance. Id. at 182.

“Yes,” defense counsel replied affirmatively. Id. “Then that’s what we’ll

do,” the judge responded. Id.

The court then replaced Juror 12 with the second alternate. When the

foreperson asked whether “they were supposed to go over the counts on

which they’d already reached a verdict,” the court responded that “you

are the jury. You decide that.” Id. at 184. 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

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impartial jury, thus resulting in reversible error. 2 Durden specifically

faulted the court for (1) failing to interview Juror 12 to determine the

grounds for her removal; (2) arbitrarily designating the second alternate

juror in lieu of the first alternate, contrary to Indiana Trial Rule 47(B); 3 and

(3) neglecting to admonish the remaining jurors to avoid any prejudicial

effect removal may have had on further deliberations.

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. Contrary to the procedural requirements set forth in Riggs,

the panel concluded, the record here failed to show (1) whether the court

questioned Juror 12 to determine the grounds for her removal and (2)

whether the remaining jurors received instructions to preserve their

impartiality. Id. at 1236–37. Because “structural error defies analysis by

harmless error standards,” the panel concluded, Durden was entitled to a

new trial without the need to show prejudice. Id. at 1237.

We now grant the State’s petition to transfer, thus vacating the Court of

Appeals decision. Ind. Appellate Rule 58(A).

Standard of Review

Trial courts have broad discretion in deciding whether to remove and

replace a juror before deliberations have begun and, in such circumstances,

we reverse only for an abuse of discretion. Riggs, 809 N.E.2d at 327. A trial

court’s decision to remove and replace a juror after commencement of

deliberations likewise requires a deferential standard of review; however,

2Although Durden argued on appeal that the trial court’s procedure amounted to

“fundamental” error, he relied largely on this Court’s decision in Riggs v. State, which refers to

unjustified removal of a juror as “structural” error. 809 N.E.2d 322, 328 (Ind. 2004). We discuss

the differences between these two error doctrines in Section I.B., infra.

3Under Indiana Trial Rule 47(B), “[a]lternate jurors in the order in which they are called shall

replace jurors who, prior to the time the jury returns its verdict, become . . . unable or

disqualified to perform their duties.”

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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.

An abuse of discretion in this context arises when the trial court’s decision

is “clearly against the logic and effect of the facts and circumstances before

the court or it misinterprets the law,” Carpenter v. State, 786 N.E.2d 696,

703 (Ind. 2003), or if the decision “was so prejudicial to the rights of the

defendant that a fair trial was impossible,” Boatright v. State, 759 N.E.2d

1038, 1042 (Ind. 2001).

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).

Discussion and Decision

There is no dispute here that the trial court’s actions fell short of Riggs’

procedural requirements for juror removal after deliberations had begun. 4

The question is whether the court’s error compels a new trial or whether

Durden’s acquiescence to the removal precludes such a remedy.

To resolve this case, we first lay a contextual foundation by examining

the preservation doctrine and the various error doctrines—harmless,

fundamental, and structural—that determine the scope of appellate

review. We must then decide where along this doctrinal spectrum the

error in this case ultimately falls and whether our invited-error doctrine

permits or precludes appellate review.

4 Had Durden objected to the removal, the State acknowledged at oral argument, and had the

trial court overruled that objection, “reversal would be required.” Oral Arg. Video Tr. at 2:45–

3:08.

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I. Scope of Appellate Review

Criminal defendants enjoy a constitutional right to a “fair trial, not a

perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). Indeed,

errors pervade nearly every corner of the law—some passing by

unnoticed, others drawing vigorous objection and protracted litigation.

Roger J. Traynor, The Riddle of Harmless Error ix (1970). The challenge for

courts, whether at the trial level or on appeal, is in distinguishing the

harmless error from the prejudicial one. Id. at 3.

A. Waiver and Invited Error

As a preliminary inquiry, appellate courts must first determine whether

the appellant properly preserved the alleged error at the trial level. 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). This gives the court an opportunity to cure the alleged

error, which, in turn, “can result in enormous savings in time, effort and

expense to the parties and the court, including avoiding an appeal and

retrial.” State v. Daniels, 680 N.E.2d 829, 835 (Ind. 1997). If the trial court

overrules the objection, the appellate court benefits from a sufficiently-

developed record on which to base its decision. Yuval Simchi-Levi,

Preservation: What Is It Good For?, 37 Pace L. Rev. 175, 180–81 (2016).

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). While there are certain exceptions to this

rule, see infra Section I.B., it’s designed to promote fairness “by preventing

a party from sitting idly by,” ostensibly agreeing to a ruling “only to cry

foul” when the court ultimately renders an adverse decision. Hale v. State,

54 N.E.3d 355, 359 (Ind. 2016).

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). This doctrine—based on the legal principle of

estoppel—forbids a party from taking “advantage of an error that she

commits, invites, or which is the natural consequence of her own neglect

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or misconduct.” Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). The

doctrine may apply to a variety of errors the party requested of the trial

court, such as the adoption of an erroneous jury instruction or the

admission of evidence prejudicial to the defendant. See, e.g., Brantley v.

State, 91 N.E.3d 566, 573 (Ind. 2018); Kingery v. State, 659 N.E.2d 490, 494

(Ind. 1995).

B. The Spectrum of Trial Court Errors

While the waiver doctrine advances important policies of judicial

efficiency, “mere expediency is not an appropriate appellate goal.” Thomas

v. Thomas, 577 N.E.2d 216, 218 (Ind. 1991). “The objectives of trial

procedure are to secure determinations that are not only speedy and

inexpensive but also just.” Id. (citing Ind. Trial Rule 1). And so, while “the

prudent lawyer will always provide a contemporaneous objection at trial

so as to preserve an issue for appeal, there are occasional exceptions to

this general rule.” Verhorn v. State, 717 N.E.2d 869, 872–73 (Ind. 1999).

1. Harmless Error

Harmless trial errors fall at one end of our “broad spectrum.” Brecht v.

Abrahamson, 507 U.S. 619, 640 (1993) (Stevens, J., concurring). An error is

harmless when it results in no prejudice to the “substantial rights” of a

party. Camm v. State, 908 N.E.2d 215, 225 (Ind. 2009); Ind. Trial Rule 61. 5

While there are important contextual variations to this rule, 6 the basic

premise holds that a conviction may stand when the error had no bearing

5Indiana Trial Rule 61 requires courts, “at every stage of the proceeding,” to “disregard any

error or defect” that “does not affect the substantial rights of the parties.” Likewise, under

Indiana Appellate Rule 66(A), “[n]o error or defect” in a trial court ruling “is ground for

granting relief or reversal on appeal” when “its probable impact . . . is sufficiently minor so as

not to affect the substantial rights of the parties.”

6For example, an error of a federal-constitutional dimension (rather than a statutory error)

requires the State to prove beyond a reasonable doubt that the alleged error had no effect on

the outcome of the case. Chapman v. California, 386 U.S. 18, 22, 24 (1967); Bush v. State, 775

N.E.2d 309, 311 (Ind. 2002).

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on the outcome of the case. At its core, the harmless-error rule is a

practical one, embodying “the principle that courts should exercise

judgment in preference to the automatic reversal for error and ignore

errors that do not affect the essential fairness of the trial.” 7 United States v.

Harbin, 250 F.3d 532, 546 (7th Cir. 2001) (internal quotation marks

omitted).

2. Fundamental Error

Further along the spectrum are errors we deem “fundamental.” An

error is fundamental, and thus reviewable on appeal, if it “made a fair trial

impossible or constituted a clearly blatant violation of basic and

elementary principles of due process presenting an undeniable and

substantial potential for harm.” Knapp v. State, 9 N.E.3d 1274, 1281 (Ind.

2014) (internal quotation marks omitted). These errors create an exception

to the general rule that a party’s failure to object at trial results in a waiver

of the issue on appeal. Benson v. State, 762 N.E.2d 748, 755 (Ind. 2002). This

exception, however, is “extremely narrow” and encompasses only errors

7An early twentieth-century legal innovation, the harmless-error rule developed in response

to the strict presumption of prejudice adopted by a majority of appellate courts in the United

States requiring automatic reversal for virtually any error, no matter how trivial. Roger A.

Fairfax, Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless

Error Rule, 93 Marq. L. Rev. 433, 436 (2009). This approach often “led to absurd results, such as

granting convicted murderers new trials because of the misspelling of non-essential words or

other typographical errors in the indictment.” Id. (citing cases). “So great was the threat of

reversal, in many jurisdictions,” the U.S. Supreme Court explained, “that criminal trial

became a game for sowing reversible error in the record, only to have repeated the same

matching of wits when a new trial had been thus obtained.” Kotteakos v. United States, 328 U.S.

750, 759 (1946).

Indiana’s harmless-error rule, now codified at Trial Rule 61, evolved from case law and

statutes dating back to the late nineteenth century. See, e.g., Smith v. Denman, 48 Ind. 65, 70

(1874) (“If error was committed, it was a harmless one, as it did not in any manner prejudice

the right of the appellants.”). The state’s first harmless-error statute appeared in 1881, adopted

in terms nearly identical to its modern counterpart. See 1881 Ind. Acts 240, 264 (“The Court

must in every stage of the action disregard any error or defect in the pleadings or proceedings

which does not affect the substantial rights of the adverse party, and no judgment can be

reversed or affected by reason of such error or defect.”). See also id. at 357–58 (applying same

rule to an appellate court).

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so blatant that the trial judge should have acted independently to correct

the situation. Id. At the same time, “if the judge could recognize a viable

reason why an effective attorney might not object, the error is not blatant

enough to constitute fundamental error.” Brewington, 7 N.E.3d at 974.

3. Structural Error

At the end of our spectrum lies “a limited class of fundamental

constitutional errors that defy analysis by harmless error standards,” thus

requiring automatic reversal without the need to show prejudice. 8 Neder v.

United States, 527 U.S. 1, 7 (1999) (internal quotation marks omitted). These

errors, known as “structural errors,” affect “the framework within which

the trial proceeds, rather than simply an error in the trial process itself.”

Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

Some structural errors, such as the deprivation of counsel or defective

reasonable-doubt instructions, always result in prejudicial harm to the

defendant. Weaver v. Massachusetts, ––– U.S. –––, 137 S. Ct. 1899, 1908

(2017) (citing Gideon v. Wainwright, 372 U.S. 335 (1963); Sullivan v.

Louisiana, 508 U.S. 275 (1993)). However, a structural error need “not lead

to fundamental unfairness in every case.” Id. Structural error may arise

when it threatens an interest other than protecting the defendant against

wrongful conviction. Id. at 1910 (noting that the denial of a right to a

public trial may inhibit the First Amendment interests of the press and of

the public at large). Structural error also results if “the precise effect of the

violation cannot be ascertained.” Id. at 1908 (internal quotation marks

8This “limited class” of errors includes the deprivation of the right to counsel at trial, the lack

of an impartial judge, racial discrimination in grand jury selection, denial of the right to pro se

representation, and denial of the right to a public trial. Arizona v. Fulminante, 499 U.S. 279,

309–10 (citing, respectively, Gideon v. Wainwright, 372 U.S. 335 (1963); Tumey v. Ohio, 273 U.S.

510 (1927); Vasquez v. Hillery, 474 U.S. 254 (1986); McKaskle v. Wiggins, 465 U.S. 168 (1984);

Waller v. Georgia, 467 U.S. 39 (1984)). See also Sullivan v. Louisiana, 508 U.S. 275 (1993) (defective

reasonable-doubt instructions amount to structural error); United States v. Gonzalez-Lopez, 548

U.S. 140 (2006) (structural error results from deprivation of counsel of one’s choice). For

examples of constitutional errors held subject to harmless-error analysis, see Fulminante, 499

U.S. at 306–07.

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omitted) (providing example of when a defendant is denied the right to an

attorney of his or her choice).

II. Application of the Invited-Error Doctrine to

Claims of Structural Error

The State argues that Durden’s affirmative agreement with the court’s

procedure to remove and replace Juror 12, for whatever strategic reason,

waived fundamental-error review. The State further contends that, while

the procedure here “was not consistent with the procedures laid out by

this Court” in Riggs, Durden’s actions justified removal, thus precluding

structural error. Pet. to Trans. at 9.

Durden, in response, argues that, despite his acquiescence, “the

procedure adopted by the trial court to avoid a mistrial” violated his

constitutional right to an impartial jury and a unanimous verdict. 9 Resp. to

Pet. to Trans. at 7. He rejects the State’s assertion that agreeing to Juror

12’s removal amounted to a rational trial strategy. The court’s removal

without justification was “clearly structural error,” he insists, and there is

no basis for the State’s contention that a defendant can waive or invite

such error. Id. at 6.

A. The trial court’s deficient record resulted in structural

error.

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

9While the U.S. Supreme Court “has never held jury unanimity to be a requisite of due

process of law” in state criminal trials, Johnson v. Louisiana, 406 U.S. 356, 359 (1972), Indiana

“has long required that a verdict of guilty in a criminal case ‘must be unanimous.’” Baker v.

State, 948 N.E.2d 1169, 1173–74 (Ind. 2011) (quoting Fisher v. State, 259 Ind. 633, 646, 291

N.E.2d 76, 82 (1973)).

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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. The

court must also (1) avoid questions that affect the juror’s judgment, in case

he or she continues to serve; and (2) in the event of removal, take steps to

minimize any prejudicial impact removal may have had on the remaining

jurors. Id. at 329.

Here, the trial court expressed concern with Juror 12 “subverting the

integrity of the process.” Tr. Vol. IV, pp. 177–78. But the scant record gives

us little to validate that concern. In fact, the juror’s note indicated at least

an attempt at fulfilling her duties, not a combative disposition toward the

panel or other “extreme modes of conduct.” Riggs, 809 N.E.2d at 328. A

failure to “agree quickl[y] on the charges,” standing alone, provides no

grounds for removal. See id.

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) (failure to interview juror resulted in a record insufficient to justify

removal after deliberations had begun). And in the absence of that

evidence, we have no way of determining whether Juror 12’s conduct

justified removal. See Riggs, 809 N.E.2d at 328.

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 (internal quotation marks

omitted).

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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. 10

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 (internal quotation marks

omitted).

B. The invited-error doctrine precludes a remedy for

Durden’s claim of structural error.

“The procedure adopted by the trial court to avoid a mistrial was an

egregious abuse of the right to a trial by jury,” Durden asserts, “whether

acquiesced in or not.” Resp. to Pet. to Trans. at 7. He argues that there is

no authority that removes the error here from the scrutiny of structural-

error review. According to Durden, there simply are no circumstances

under which structural error permits anything other than reversal.

10We rest our conclusion here upon the inability to measure the error’s effect, which is one of

“three broad rationales for finding an error to be structural.” Weaver, 137 S. Ct. at 1903. See also

Vasquez, 474 U.S. at 263 (observing that “the effect of the violation cannot be ascertained”

when a “petit jury has been selected upon improper criteria or has been exposed to

prejudicial” factors); United States v. Gaya, 647 F.3d 634, 639 (7th Cir. 2011) (structural error

arises when it becomes difficult if not impossible to determine “how the trial might have gone

had the error not been committed”). In the absence of a record demonstrating the jury’s ability

to reach an impartial verdict, harmless-error analysis simply becomes a futile, “speculative

inquiry into what might have occurred in an alternate universe.” Gonzalez-Lopez, 548 U.S. at

150. Even if removal were justified here, the deficient record fails to indicate otherwise and

thus compels our finding of structural error. See Riggs, 809 N.E.2d at 327 (holding that the

“record is not sufficient to support removal of a juror after deliberations have begun”).

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We disagree and find “no reason to exempt ‘structural errors’” from the

invited-error doctrine. 11 United States v. Gaya, 647 F.3d 634, 640 (7th Cir.

2011).

As a general rule, the denial of a defendant’s right to an impartial jury

requires automatic reversal. Gray, 481 U.S. at 668. But as with all general

rules, even structural rights are “subject to exceptions.” Weaver, 137 S. Ct.

at 1909. Only “where there is an objection at trial and the issue is raised on

direct appeal” is the defendant “entitled to automatic reversal regardless

of the error’s actual effect on the outcome.” Id. at 1910. (emphasis added)

(internal quotation marks omitted). If, however, the “defendant does not

preserve a structural error on direct review,” then he “generally bears the

burden” of showing prejudice. 12 Id.

The absence of counsel’s objection defeats the policy aims of our

preservation doctrine: “the trial court is deprived of the chance to cure the

11We note that our decision today corresponds with decisions from several other states to

have addressed the issue presented here, either as a general rule or in the context of other

structural errors. See, e.g., Ex parte Thuesen, No. WR-81584-01, 2018 WL 1179875, at *5 (Tex.

Crim. App. Mar. 7, 2018) (“This Court and other courts often apply the doctrine of invited

error to rule against defendants on a wide variety of matters, including errors that might

amount to fundamental or structural errors.”); State v. Cassano, 772 N.E.2d 81, 95 (Ohio 2002)

(concluding that the trial court erred in closing a hearing to the public absent specific findings

justifying such closure but declining reversal since the defendant invited the error by

requesting the closure to begin with in an effort to avoid prejudicial publicity); State v. Benton,

858 N.W.2d 535, 540 (Minn. 2015) (declining to decide whether the trial court committed

structural error by granting defendant’s courtroom closure requests since the alleged errors

were invited by the defendant “and did not seriously affect the fairness, integrity, or public

reputation of the judicial proceedings”).

12 Decisions from both the U.S. Supreme Court and this Court applying the waiver doctrine to

other structural errors lend further support for our decision. See, e.g., Waller v. Georgia, 467 U.S

39, 42 n.2 (1984) (acknowledging that, when a defendant consents to a courtroom closure, he

may be “procedurally barred from seeking relief as a matter of state law”); Faretta v.

California, 422 U.S. 806, 807, 834 n.46 (1975) (noting that, while “a defendant in a state criminal

trial has a constitutional right to proceed without counsel,” he “cannot thereafter complain

that the quality of his own defense amounted to a denial of effective assistance of counsel”)

(internal quotation marks omitted). See also Stephenson v. State, 864 N.E.2d 1022, 1030 (Ind.

2007) (foreclosing defendant’s claim, in a post-conviction proceeding, that his appearance in a

stun belt before the jury constituted structural error since defendant failed to object at trial or

raise the issue on direct appeal).

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violation,” “the costs and uncertainties of a new trial are greater because

more time will have elapsed in most cases,” and the “finality interest is

more at risk.” Weaver, 137 S. Ct. at 1912. 13 See also Whiting v. State, 969

N.E.2d 24, 32 (Ind. 2012) (declaring that the “policies justifying proper

preservation of nonstructural claims apply with equal force to structural

claims”). 14

Here, Durden did far more than simply fail to object to the procedure

he now complains of; his defense counsel expressly declined “any

caveats” or special instructions for the jury and repeatedly assured the

court of his approval of the procedure employed, despite its defects.

Durden and his counsel were in the best position to observe Juror 12

throughout the trial and to make a reasoned decision whether to keep her

on the jury. Based on the record before us, we can only conclude that

Durden decided to engage in a rational, albeit unsuccessful, trial

strategy. 15 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).

13 The decision in Weaver applied to a structural error raised as an ineffective-assistance-of-

counsel claim, rather than a structural error preserved and then raised on direct review. See

137 S. Ct. at 1912. However, the Court’s reasoning for requiring a defendant to show prejudice

in the former context suggests that the same showing of prejudice is necessary in the latter

context. See id. (explaining that, when a defendant objects to a structural error at trial, the

court can cure the defect, but when a defendant first raises the error in an ineffective-

assistance claim, the trial court is deprived of such an opportunity).

14 Although Whiting involved a prospective juror, we consider the rationale in that case

apposite. There, defense counsel knew of the juror’s bias during voir dire but, after the trial

court denied a joint challenge for cause, neither party exercised a peremptory strike to remove

the juror, ultimately leading to her empanelment. 969 N.E.2d at 27. On appeal of her

conviction, we held that Whiting, by failing to exhaust her peremptory challenges, had

waived her claim of structural error—the seating of a biased juror. Id. at 35.

15Because defense counsel agreed to the second alternate juror in lieu of the first, we likewise

conclude that Durden waived his argument that the trial court violated Indiana Trial Rule

47(B).

Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018 Page 14 of 16

Conclusion

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) (holding that “an illegal sentence

that is invited nevertheless is subject to the fundamental error exception”).

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, C.J., and David, Slaughter, and Goff, JJ., concur.

Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018 Page 15 of 16

ATTORNEYS FOR APPELLANT

Ruth Ann Johnson

Michael R. Fisher

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

Indiana Supreme Court | Case No. 18S-CR-329 | June 20, 2018 Page 16 of 16