Scott A. Wright v. State of Indiana , 2014 Ind. App. LEXIS 310 ( 2014 )

Jul 11 2014, 6:17 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT KING GREGORY F. ZOELLER
RUSSELL W. BROWN, JR. Attorney General of Indiana
Scott King Group
Merrillville, Indiana JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SCOTT A. WRIGHT, )
)
Appellant-Defendant, )
)
vs. ) No. 45A05-1310-CR-526
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
The Honorable Natalie Bokota, Magistrate
Cause No. 45G01-1207-FA-17
July 11, 2014
OPINION – FOR PUBLICATION
MAY, Judge
Scott A. Wright was found guilty of Class A felony child molesting1 after the trial
court, during jury deliberations, replaced the sole juror who would have voted to find Wright
not guilty. Replacement of the juror was error2 under the facts before us, and the jury was not
properly instructed that removal did not reflect approval or disapproval of the juror’s views.
We accordingly vacate Wright’s conviction and remand for a new trial.3
FACTS AND PROCEDURAL HISTORY
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
1
Ind. Code § 35-42-4-3.
2
Because Wright is entitled to a new trial for that reason, we need not address his argument that certain
prejudicial evidence against him was wrongly admitted at his first trial.
2
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
3
We heard oral argument June 4, 2014, at the French Lick Casino and Resort Center before the Indiana State
Bar Association’s Solo and Small Firm Conference. We thank the Bar Association and the Resort for their
hospitality and commend counsel on the quality of their oral advocacy.
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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.
DISCUSSION AND DECISION
1. Replacement of Juror 356
Indiana Trial Rule 47 provides: “Alternate jurors . . . shall replace jurors who, prior to
the time the jury returns its verdict, become or are found to be unable or disqualified to
perform their duties.” Removing an impartial juror who has voted to acquit based on the
evidence presented at trial and on the juror’s life experiences “gravely imperil[s]” a
defendant. Gavin v. State, 671 N.E.2d 440, 447 (Ind. Ct. App. 1996). A trial court has broad
discretion to remove a juror before deliberations begin, but removing a dissenting juror after
that point implicates the defendant’s right to a unanimous verdict and the defendant’s right to
a jury trial. Riggs v. State, 809 N.E.2d 322, 327 (Ind. 2004).
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
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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
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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.
The removal of Juror 356 was improper under the standard our Supreme Court
articulated in Riggs:
Once deliberations begin, discharge of a juror is warranted only in the most
extreme situations where it can be shown that the removal of the juror 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.
Indeed, some jurisdictions hold that a mistrial is required if discharge occurs
after deliberations begin.
Id. at 327-28.
In Riggs, removal of the juror was improper because the record did not establish
misconduct beyond a mere refusal to negotiate further. 809 N.E.2d at 328. After four hours
of deliberation the foreman sent the trial court a note indicating a juror had “become
belligerent, not willing to discuss the issues onhand [sic] pertaining to the case.” Id. at 324.
The juror had participated “[v]ery marginally,” id., in deliberations. The juror’s belligerence
had not resulted in physical conduct, but the foreman felt it was “likely to get to that point.”
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Id. at 325. The foreman said the juror had “fairly participated in deliberations,” and the court
asked the foreman, “is it just that the person has reached an opinion and refuses now to budge
from that?” Id. The foreman responded, “That’s correct.” Id.
Riggs’ counsel requested the court ask the foreman if he believed further deliberations
would yield a unanimous verdict, and if the answer was no, to declare a hung jury and grant a
mistrial. The State asked for removal of the juror. The foreman was recalled and told the
court deliberations had “pretty much stopped.” Id. The foreman thought that if deliberations
continued there would have been violence and the juror’s conduct was “such as to cause fear
[of violence] to other jurors.” Id. But he then said:
I don’t think any of the jurors are physically fearing, fearing that juror, I mean
most of the jurors are not willing to work with that juror because of the way
they feel. As well as it goes the other way . . . . That particular juror is not
willing to work with any of the other jurors to talk out the various different
charges.
Id. Riggs’ counsel expressed concern that the jury had continued deliberating, “without the
juror who caused the problem.” Id. Our Supreme Court said, “[w]e assume, but are not
certain, that this was based on the foreman’s reports that little progress had been made since
5:00 p.m., and the assumption that the still unnamed juror, though present, was not engaged
in the deliberations.” Id. at 326.
The holdout juror then asked to see the judge. He told the court, “The head juror
accused me of trying to defend the defendant and I’m not going to take that . . . . I don’t have
to because I’m trying to give a fair and impartial determination to this evidence and to this
Court.” Id. The trial court sent the juror out of the room, then said: “First of all the Court did
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in fact observe the demeanor of the juror and listened to his words to the point that the Court
is troubled if it sends this juror back to deliberate . . . I am fearful of the events that would
occur back there.” Id. The judge then dismissed the juror and placed an alternate juror on
the jury. It asked each juror, in the presence of the others, if the removal of the juror would
interfere with their ability to render a fair and impartial verdict, to which each responded no.
The jury then reached a guilty verdict on two of the four charges against Riggs.
Riggs contended removal of the juror violated his constitutional right to an impartial
jury and the record did not support removing the juror. Our Indiana Supreme Court agreed.
The record showed deputies reported screaming in the jury room, but it did not indicate who
screamed, what they were screaming, or to whom the screaming was directed. The foreman
ultimately concluded the other jurors were not in fear of the juror who was removed.
In Gavin, replacement of a juror after deliberations began was an abuse of discretion.
We noted “the trial judge went to exemplary lengths to try to follow appropriate procedures,”
but his comments on the record “reveal that he may have been more concerned with avoiding
a mistrial in a very serious matter after a four-day jury trial than with protecting Gavin’s right
to a fair trial.” 671 N.E.2d at 447. The trial judge decided to remove a juror solely on the
basis of a note that inaccurately stated the juror could not make a decision in the case. In
fact, the juror had made a decision to acquit based on the evidence presented at trial. The
trial judge would not allow the juror to continue deliberations even after being apprised of
the facts.
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It appeared from the record that, at the point the note was written, the jury was
deadlocked eleven to one. Had the holdout juror not been dismissed and replaced with an
alternate, there likely would have been a hung jury. We found it was an abuse of discretion
to replace the holdout juror with an alternate, and we reversed:
[R]emoving an impartial juror who has voted to acquit based upon the
evidence presented at trial and on the juror’s life experiences does gravely
imperil a defendant. . . . Not only was [the holdout juror] able to make an
impartial decision with regard to Gavin’s guilt of the crimes charged, he had
indeed made such a decision, and that decision was based upon the evidence
presented at trial.
Id.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:4
[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
4
The State also distinguishes Riggs on the ground its holding was not that removal of the juror was error, but
that the record was inadequate: “We hold that this record is not sufficient to support removal of a juror after
deliberations have begun.” 809 N.E.2d at 327. We do not find the Riggs holding so limited. The Riggs Court,
after completing its lengthy analysis, explicitly said, “Accordingly, as in Gavin [v. State, 671 N.E.2d 440 (Ind.
Ct. App. 1996)], removal was improper.” 809 N.E.2d at 328.
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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
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law the trial court reached based on facts concerning the juror’s actions or inaction, which
conclusion we review de novo. See, e.g., Briles v. Wausau Ins. Companies, 858 N.E.2d 208,
212 (Ind. Ct. App. 2006) (while we defer substantially to findings of fact, we do not do so for
conclusions of law; we evaluate conclusions of law de novo and owe no deference to a trial
court’s determination of such questions).
The State, as did the trial court, relies on Dixon v. State, 524 N.E.2d 2, 4 (Ind. 1988),
where trial court properly dismissed a juror who would not reach a decision. The juror
refused to find for or against Dixon. On questioning by the trial judge, the juror stated, “It’s
not something I want on my head.” Id. There, “the juror was refusing to participate in the
deliberations, as distinct from voting for acquittal.” Id. (emphasis added). Juror 356, unlike
the juror in Dixon, could, and did, make a decision – he believed the victim was not credible
and he voted for acquittal. Dixon does not control.
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.
2. The Riggs Instruction
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
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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.)
CONCLUSION
As Juror 356 voted to acquit Wright based on his belief the victim was not credible, he
should not have been replaced for refusal to deliberate. Even if dismissal had been
permissible, the newly-constituted jury should have been instructed that the removal of Juror
356 did not reflect the court’s approval or disapproval of the views the juror expressed. We
vacate Wright’s conviction and remand for a new trial.
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Vacated and remanded.
VAIDIK, C.J., and BAKER, J., concur.
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