Court of Appeals of Indiana | Memorandum Decision 89A04-1705-CR-1104 | December 29, 2017 Page 1 of 13

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Ronald J. Moore

The Moore Law Firm, LLC

Richmond, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

James B. Martin

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Lavar L. Thomas,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 29, 2017

Court of Appeals Case No.

89A04-1705-CR-1104

Appeal from the Wayne Superior 

Court

The Honorable Gregory A. Horn, 

Judge

Trial Court Cause No.

89D02-1504-F3-18

Crone, Judge.
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Case Summary

[1] Lavar L. Thomas was charged with several crimes that were tried to a jury. 

During deliberations, Juror No. 4 notified the trial court that she felt she may be 

threatened by Thomas’s family or girlfriend. The court questioned the juror, 

who said that she had expressed this feeling to the other jurors. Thomas moved 

for a mistrial, which the court denied. The court individually questioned the 

other jurors and the alternate juror, all of whom affirmed under oath that Juror 

No. 4’s comments had not affected their decision and/or decision-making. The 

court replaced Juror No. 4 with the alternate juror and sent the jury back for 

further deliberations. Thomas renewed his motion for mistrial, which the court 

denied. Ultimately, Thomas was found guilty of level 4 felony unlawful 

possession of a firearm by a serious violent felon (“SVF”), level 6 felony 

possession of cocaine, and level 3 felony dealing in a narcotic drug. 

[2] Thomas now appeals, contending that the trial court erred in denying his 

motions for mistrial, in removing Juror No. 4, and in failing to instruct the jury 

regarding the reasons for her removal. Finding no reversible error, we affirm.

Facts and Procedural History

[3] At the start of Thomas’s jury trial on February 21, 2017, he was facing charges 

of level 4 felony unlawful possession of a firearm by an SVF (which was 

bifurcated as to possession and SVF status), level 4 felony dealing in cocaine, 

and level 3 felony dealing in a narcotic drug. The jury began deliberating at 
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11:31 a.m. on February 24.1 At 4:24 p.m., the trial court told the parties that it 

had received the following note from Juror No. 4: “I [feel] that I may be 

threatened by the family or girlfriend about the verdict. I know his girlfriend 

and family but I do not know him personally.” Tr. Vol. 2 at 165.2 The court 

decided to voir dire the juror individually, and both counsel stated that they had 

no objection to this procedure. The court placed Juror No. 4 under oath and 

questioned her as follows:

THE COURT: .... First off, what is it that you're hoping the 

result from your note is? What is it you're hoping – hoping 

happens as a result of you writing this note?

JUROR [NO. 4]: Well, I hope everything turns out fine, but, like 

I said, personally --

THE COURT: I can’t -- first off, please don’t tell us the status of 

if you voted, if you've got verdicts reached, or don't let us know 

any of that at this point.

JUROR [NO. 4]: Correct.

THE COURT: Okay?

JUROR [NO. 4]: Correct. I hope everything comes out good. 

That’s all I can say. I mean --

THE COURT: And by “good,” you mean that nothing bad 

 

1 The transcript incorrectly states that deliberations began at 11:31 p.m. Tr. Vol. 2 at 163.

2

In his notice of appeal, Thomas did not request a transcript of the pretrial voir dire, so we do not know 

whether or to what extent Juror No. 4 was questioned about her familiarity with Thomas’s acquaintances 

and family.
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happens from Mr. Thomas’s family toward you?

JUROR [NO. 4]: Right. Correct.

THE COURT: Are you asking the Court to do anything at this 

time?

JUROR [NO. 4]: No, not at this moment, no.

THE COURT: All right. Have you voiced these concerns that 

are in this note to your fellow jurors?

JUROR [NO. 4]: Yes, sir, I have.

THE COURT: To all of the jurors? In other words, you brought 

it up in front of everyone, I assume? Is that the way it was done?

JUROR [NO. 4]: Yes.

THE COURT: In your view, has your voicing of those concerns 

influenced the other jurors in any way as to their verdicts or 

proposed -- or the way they’re leaning?

JUROR [NO. 4]: Yes. I mean, we come to an agreement.

THE COURT: I’m sorry?

JUROR [NO. 4]: We come to an agreement.

THE COURT: [Prosecutor], any questions?

[PROSECUTOR]: I do. Has anyone said anything to you from 

his family?

JUROR [NO. 4]: No.

[PROSECUTOR]: Okay. If I can have a minute. I’m not
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asking whether an agreement has been reached -- well, I think she 

-- has she said they have come to an agreement?

THE COURT: She said an agreement, and I don’t know what 

that means and I don’t intend to ask.

[PROSECUTOR]: Right. And I don't -- I want to know when it 

was brought up in jury deliberations.

THE COURT: That’s a fair question. When did you bring this 

up?

JUROR [NO. 4]: Well, I just -- actually, I just thought about it 

just a minute ago, so that’s the reason why because they kept 

saying about -- we was talking about the verdict and all that, so 

that’s how it came -- approached.

THE COURT: Well, it’s 4:30.

JUROR [NO. 4]: Correct.

THE COURT: A little after 4:30. How long ago did you bring 

this up? Four o’clock, 3:30?

JUROR [NO. 4]: Yeah, I'll say four o’clock.

Id. at 168-70. The court asked if defense counsel had any questions, and he 

replied, “I don’t think so.” Id. at 170. The court then sent Juror No. 4 back to 

the jury room.

[4] Defense counsel moved for a mistrial, stating,

We don’t know what the supposed agreement is. I don’t know if 

they’re -- I mean it’s anyone’s guess. But it sounds like there’s a 

very big danger if she’s disclosed that she shared that with other 
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jurors, that it tainted the remainder of the jury panel, so the 

normal alternative would have been if she had sent the note and 

not shared it, we could replace her with an alternate. That’s 

what an alternate is for.

Id. at 171. The prosecutor objected to the motion for mistrial. The court took 

the matter under advisement and stated that it would voir dire the jurors 

individually to see if they had “been influenced in any manner by what” Juror 

No. 4 had said. Id. at 172. Defense counsel did not object to this procedure.

[5] The court placed each juror under oath and asked whether Juror No. 4 had 

shared her “feelings” (all jurors answered yes) and whether her statements had 

affected the juror’s decision and/or decision-making (all jurors answered no). 

The court followed the same procedure with the alternate juror, who had been 

in the jury room but had not participated in the deliberations, and she gave the 

same answers. Defense counsel asked all but one juror whether there was any 

indication that Juror No. 4’s statements had affected any other juror’s decision; 

one juror stated that he could not “speak for any other juror[,]” and the rest of 

the jurors answered no. Id. at 174. The court denied defense counsel’s motion 

for mistrial, noting that the jurors “appeared to be adamant about the fact that it 

had not affected them in any way” and that “they didn’t believe any of the 

others were affected.” Id. at 190.

[6] The court then considered Juror No. 4’s fate. The prosecutor expressed her 

belief that Juror No. 4 had “already stated that it would affect her decision-
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making process” and asked that she be replaced with the alternate. Id. at 190. 

Defense counsel also asked for Juror No. 4 to be replaced. The court replied,

By agreement, at least as to where -- given the Court’s ruling on 

the mistrial, counsel agree that we should replace [Juror No. 4] 

with the alternate juror. And I want to make that clear on the 

record that [defense counsel] is not agreeing -- he’s only agreeing 

because I’ve decided on the mistrial application and have denied 

that motion.[...] I want to make that clear for appellate 

purposes.

Id. at 191. The court summoned Juror No. 4 and told her, “[W]e have decided 

to have you replaced -- in the interest of fairness have you replaced by the 

alternate juror, so we are going to do that at this time.” Id. at 192. The court 

then stated that it would summon the entire jury panel and inform the alternate 

that “she is now part of the Jury[,]” which it did. Id. The court told the jurors,

[W]e still do not know and we should not know the state of your 

jury deliberations. We were clear not to ask that question of 

anyone. And we do not know the status of your deliberations at 

this time. So with that, we will send you back in for what we 

think are further deliberations.

Id. at 193. The transcript does not indicate at what time the jury renewed its 

deliberations.

[7] After the jury left the courtroom, defense counsel stated,

Judge, [...] you told the Jury several times we don’t want to 

know their decision-making and where they’re at on the verdict, 

but almost implicitly and undeniably by the tenor and the content 
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of that letter from the juror that was excused, it sounds like 

there's been -- I’m not sure what an agreement means, but it 

sounds like there’s been some -- it sounds like she’s disclosed that 

they have convicted on something. So I don’t know if that will 

change the Court’s mind in my renewing a motion for mistrial.

Id. The trial court replied,

It does not. We brought out every one of the other jurors who 

each adamantly denied that it had influenced their decisionmaking or their decisions up to this point in time. And I was 

careful to ask both, decisions and decision-making, and it was 

clear from each one of them that it had not. And so, with that, it 

seems to me the appropriate thing to do is to dismiss that juror,

replace her with the alternate, and then go from there.

Id. at 194. Defense counsel expressed concern that “they’ve already reached a 

verdict and then the alternate is coming in post-verdict.” Id. The court replied,

Well, it wouldn’t be post-verdict because I’m assuming -- well, 

they haven’t given anything to me. They’re now going to need to 

include the alternate juror as a part of those discussions. I’m not 

sure where things stand, and I don’t intend to ask. That’s not our 

– that’s not for us to know at this point [...].

Id.

[8] At 5:25 p.m., the court announced that the jury had “reached verdicts in this 

case.” Id. at 195. The jury found Thomas guilty of unlawful possession of a 

firearm, level 6 felony possession of cocaine (as a lesser included offense of level 

4 felony dealing in cocaine), and level 3 felony dealing in a narcotic drug. 

Thomas then admitted that he was an SVF for purposes of the firearm charge. 
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The court sentenced him to fourteen and a half years executed. Thomas now 

appeals.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion in 

denying Thomas’s motions for mistrial.

[9] Thomas first contends that the trial court erred in denying his motions for 

mistrial. Our supreme court has explained that

[a] trial court is in the best position to evaluate whether a mistrial 

is warranted because it can assess first-hand all relevant facts and 

circumstances and their impact on the jury. We therefore review 

denial of a motion for mistrial only for abuse of discretion. 

However, the correct legal standard for a mistrial is a pure 

question of law, which we review de novo.

Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014) (citations omitted).

[10] “An impartial jury is the cornerstone of a fair trial, guaranteed by the Sixth 

Amendment and Article 1, Section 13 of our Indiana Constitution.” Id. at 936. 

The gravamen of Thomas’s mistrial argument appears to be3that Juror No. 4’s 

expression of her concern about retaliation from Thomas’s family or girlfriend 

violated his right to an impartial jury. To the extent that the State might have 

 

3 Thomas intermingles several different arguments, which has made it difficult for us to address them. 
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been obligated to rebut any presumption in this regard,4 we believe that the 

presumption was sufficiently rebutted by the trial court’s questioning of the 

jurors and the alternate juror, all of whom affirmed under oath that Juror No. 

4’s statements did not affect their decision and/or decision-making, i.e., that 

they remained impartial.5 Consequently, we find no abuse of discretion in the 

trial court’s denial of Thomas’s motions for mistrial.

Section 2 – The trial court did not abuse its discretion in 

removing Juror No. 4.

[11] Thomas also argues that the trial court erred in removing Juror No. 4 during 

deliberations. In Riggs v. State, our supreme court stated,

Although a trial court has broad discretion to remove a juror 

before deliberations begin, 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. 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 

 

4

In Ramirez, the court stated that “[d]efendants seeking a mistrial for suspected jury taint are entitled to the 

presumption of prejudice only after making two showings, by a preponderance of the evidence: (1) extrajudicial contact or communications between jurors and unauthorized persons occurred, and (2) the contact or 

communications pertained to the matter before the jury.” 7 N.E.3d at 939. “The burden then shifts to the 

State to rebut this presumption of prejudice by showing that any contact or communications were harmless.” 

Id. Thomas relies on Ramirez in arguing that he “is entitled to the presumption that ... jury taint occurred” 

and that “[t]he burden, therefore, shifted to the State to illustrate otherwise.” Appellant’s Br. at 25. In this 

case, however, there is no evidence that any extra-judicial contact or communications between jurors and 

unauthorized persons occurred; more specifically, there is no evidence that Thomas’s family or girlfriend 

communicated a threat to Juror No. 4. Assuming for argument’s sake that the Ramirez rubric applies here 

and that Thomas showed that he is entitled to a presumption of prejudice based on Juror No. 4’s 

communications to the other jurors, we believe that the State met its burden of showing that those 

communications were harmless.

5 Thomas suggests that a trial court may not rely on a juror’s own statement of impartiality. Ramirez says 

otherwise. 7 N.E.3d at 941.
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considerations not present before deliberations begin. As a 

result, it demands a carefully developed record as to the grounds 

for removal and also requires precautions to avoid inappropriate 

consequences from the removal.

.... 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.

809 N.E.2d 322, 327-28 (Ind. 2004) (citation omitted). Unjustified removal of a 

juror “is structural error, just as much as denial of the right to an impartial 

jury.” Id. at 328. “[T]he trial court must establish the record to support 

removal of a deliberating juror, just as a record is required to establish bias of a 

prospective juror.” Id. at 329.

[12] Thomas relies on Riggs6in arguing that the trial court erred in removing Juror 

No. 4 from the panel. Unlike the juror at issue in Riggs, however, there is no 

indication that Juror No. 4 was a dissenting juror. Thomas complains that 

Juror No. 4 “was not asked questions to discern her ability to participate in 

deliberations or her willingness to participate[,]” that “[s]he did not seek 

removal from the jury[,]” and that “she informed the court that she did not 

require its assistance at all.” Appellant’s Br. at 26. He argues that upon 

discovering “that the information [Juror No. 4] communicated to the remaining 

 

6 Thomas also relies on Durden v. State, 83 N.E.3d 1232 (Ind. Ct. App. 2017), which is currently pending on 

transfer before our supreme court.
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jurors had zero impact on their deliberations, the court should have ceased 

inquiry and returned [her] to the jury room for further deliberation.” Id.

[13] But Thomas’s argument disregards Juror No. 4’s statement that she hoped that 

everything would “come[] out good[,]” i.e., that “nothing bad” would happen 

between her and Thomas’s family. Tr. Vol. 2 at 168.7 Although Juror No. 4

stated that she did not want the trial court to do anything at that time, the court 

was entitled to err on the side of her personal safety and thus ensure the 

integrity of the process.

8

 We defer to the trial court’s judgment, and the record 

in this case establishes that Juror No. 4’s removal did not prejudice the 

deliberations of the rest of the panel and did not impair Thomas’s right to a jury 

trial. Accordingly, we cannot conclude that the trial court abused its discretion 

in removing Juror No. 4.

 

7 Thomas’s argument also disregards that his trial counsel acquiesced to Juror No. 4’s removal.

8 Thomas takes issue with the prosecutor’s assertion that Juror No. 4 had stated that her concern about 

Thomas’s family and girlfriend “would affect her decision-making process.” Tr. Vol. 2 at 190. It is true that 

Juror No. 4 did not say this, but the record does not indicate that the trial court based its decision on the 

prosecutor’s assertion.
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Section 3 – Thomas waived any argument regarding the trial 

court’s failure to instruct the jury about the reasons for Juror 

No. 4’s removal.

[14] Finally, Thomas argues that the trial court erred in failing to instruct the jury 

about the reasons for Juror No. 4’s removal.

9

 Assuming for argument’s sake

that this was error, Thomas failed to bring it to the trial court’s attention and 

therefore has waived the issue on appeal. “A party may not sit idly by, permit 

the court to act in a claimed erroneous manner, and subsequently attempt to 

take advantage of the alleged error.” Bunting v. State, 854 N.E.2d 921, 924 (Ind. 

Ct. App. 2006), trans. denied. Therefore, we affirm.

[15] Affirmed.

Robb, J., and Bradford, J., concur.

 

9 Thomas relies on the following language from Riggs:

[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.... Removal should be accompanied by an instruction that removal in no way reflected 

approval or disapproval of the views expressed by the juror.

809 N.E.2d at 329 (emphasis added). Notably, Riggs does not say that such an instruction must be given in 

every case, and Juror No. 4 was not removed from the jury based on her view of the case, i.e., whether 

Thomas was innocent or guilty. Given the nature of Juror No. 4’s communications to the other jurors, we 

cannot say that the trial court erred in taking the approach of “the less said, the better.”