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People v. Clemens

Supreme Court of Colorado, En Banc

September 11, 2017

The People of the State of Colorado, Petitioner
v.
Bradley Raymond Clemens. Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA1460

          Attorneys for Petitioner: Cynthia H. Coffman, Attorney General Rebecca A. Adams, Senior Assistant Attorney General Denver, Colorado

          Attorneys for Respondent: Douglas K. Wilson, Public Defender Jon W. Grevillius, Deputy Public Defender Denver, Colorado

          Attorneys for Amicus Curiae Colorado Trial Lawyers Association: Darling Milligan Horowitz PC Jason B. Wesoky Denver, Colorado

          OPINION

          BOATRIGHT JUSTICE

          ¶1 We granted certiorari to consider whether the trial court abused its discretion when it relied on three prospective jurors' silence in response to questions asked of the entire venire to conclude that those jurors had been rehabilitated after they had previously expressed a preconceived opinion about the defendant's right to remain silent.[1]

         ¶2 We hold that a prospective juror's silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court's conclusion that the juror has been rehabilitated when, in light of the totality of the circumstances, the context of that silence indicates that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial. We conclude that the context surrounding the challenged prospective jurors' silence in this case supported the trial court's conclusion that they had been rehabilitated, meaning that the trial court did not abuse its discretion in denying defense counsel's challenges for cause.[2]Accordingly, we reverse the judgment of the court of appeals.

          I. Facts and Procedural History

         ¶3 Defendant Bradley Raymond Clemens chased his girlfriend out of their home and attacked her with a golf club on the street. He also attacked a bystander who attempted to intervene and stop the assault. The People charged Clemens with second-degree assault, felony menacing, and third-degree assault. Clemens pleaded not guilty, and the matter proceeded to a jury trial.

         ¶4 The trial court judge began jury selection for Clemens's trial by addressing all of the prospective jurors. She first summarized the main principles of criminal law, including that "[t]he defendant is never compelled to testify, and the fact that he does not cannot be used against him or as an inference of guilt and should not prejudice him in any way." The judge also told the jurors that she would ask them open-ended questions and that they should raise their hands if they had an answer. Later, she reminded the jurors that if anyone had answers to questions asked of the whole venire, "[P]lease just raise your hand." Consequently, prospective jurors actively volunteered answers throughout her and the attorneys' questioning.

         ¶5 During Clemens's portion of voir dire, defense counsel questioned the venire members, asking for their thoughts on relevant legal principles. Jurors 7, 10, and 12 all responded to various questions throughout defense counsel's voir dire. At one point, defense counsel asked the venire members questions about their ability to fairly assess the credibility of witnesses. After concluding that discussion, defense counsel pointed out to Juror 25 that he had commented that he would want to "hear both sides of what happened." Juror 25 confirmed that he felt that way, and defense counsel explained that Clemens has a constitutional right not to testify. Juror 25 commented that there are "always two sides to the story" and that he would need to hear both sides before making a judgment call. Defense counsel followed up by asking, "if you don't hear from [Clemens] you have some real concerns as to whether or not you can find him not guilty?" Juror 25 said that was correct.

         ¶6 Defense counsel then asked the entire venire whether anyone else felt the same way that Juror 25 did, and Juror 12 volunteered that when one of her children will not tell their side of the story, she becomes immediately suspicious. Defense counsel asked her whether she would have a hard time finding Clemens "not guilty if [she didn't] hear from him and hear an explanation out of his mouth." Juror 12 responded, "[P]robably." Juror 10 followed with an opinion that if someone does not tell their side of the story, they have "something to hide." Defense counsel responded by asking, "Even though the Judge may instruct you that you can't use [his silence] as inference of guilt, you have real concerns you would use that as an inference of guilt?" and Juror 10 responded, "[Y]es." Juror 9 and Juror 7 each said that they agreed with those same sentiments. When defense counsel followed up and asked Juror 7 if she would "have trouble following the Judge's instruction that you may not use Clemens's exercising of the right to remain silent, that you would use that against him, " she responded, "[Y]es." Defense counsel then shifted her line of questioning and asked the panel for reasons a defendant may choose not to testify. Juror 8 said that a defendant may not want to testify because then the prosecution can ask him questions about his past offenses.

          ¶7 At that point the judge interjected. In so doing, the judge addressed the entire venire and explained that "[a] very important part of our judicial system is that the defendant never has to present any evidence or testify themselves [sic]. And you cannot use the fact that a defendant does not take the stand as evidence one way or the other." She further advised the jury that if a defendant does not take the stand, "the jury is instructed that [it] cannot guess [what] the reason is." The judge also explained that if the prosecution does not prove its case beyond a reasonable doubt as to each element of the offense, then the jury must find Clemens not guilty even if he puts on no evidence in his defense. At the conclusion of her explanation, the judge asked the venire, "[If] the prosecution[] failed to present enough evidence, would the fact that the defendant may not testify make you change your mind and say now I'm going to find him guilty because he didn't testify even though there wasn't enough evidence to prove the case; anyone who would do that?" Juror 25 said that he would-that if the defendant did not testify, then he must have something to hide and be guilty. No other juror responded to the court's question.

         ¶8 Defense counsel then resumed her voir dire and asked whether anyone else who had previously indicated that they would want to hear the defendant testify "still feels that if you don't hear from Mr. Clemens that would be a problem for you reaching a verdict of not guilty in this case?" At this point, Juror 47 answered that he could not find Clemens not guilty if he did not hear Clemens's side of the story; Juror 48 agreed with Juror 47. Defense counsel then asked whether "anybody else ha[d] anything more to say?" Juror 11 said that he was glad to have the additional information from the judge. Jurors 7, 10, and 12 did not respond. No other prospective jurors commented further on the issue, and defense counsel moved on to questioning the panel about domestic violence.

         ¶9 After defense counsel finished questioning the prospective jurors, she asked the court to excuse nine jurors for cause, including Jurors 7, 9, 10, 12, 25, 47, and 48. In support of her request, defense counsel argued that Jurors 7, 9, 10, and 12 had all indicated before the court's admonition that they would want to hear Clemens testify. The judge responded that, after she had clarified the law, Jurors 7, 9, 10, and 12 had not indicated that they could not follow the law when she called for a response, while Juror 25 had so indicated. Accordingly, the trial judge excused Jurors 25, 47, and 48 but denied defense counsel's request as to Jurors 7, 9, 10, and 12.

         ¶10 During peremptory challenges, the prosecution excused Juror 9. Defense counsel used peremptory challenges to excuse Jurors 7, 10, and 12. The jury was then sworn in, and the jurors took an oath to follow the law as instructed by the court. The matter proceeded to trial, and Clemens elected not to testify. Before deliberations, the judge instructed the jury that "[t]he defendant is never compelled to testify, and the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way."

         ¶11 The jury ultimately found Clemens guilty of second- and third-degree assault but acquitted him of felony menacing. Clemens appealed his convictions, arguing, as relevant here, that the trial court erred in denying his request to excuse Jurors 7, 10, and 12 because they were not rehabilitated after they indicated that they could not follow the law. In a split decision, a division of the court of appeals agreed with Clemens and held that silence does not constitute sufficient evidence that a prospective juror who had previously taken a position justifying a challenge for cause has been rehabilitated. People v. Clemens, 2013 COA 162, ¶ 25, __ P.3d __. The division thus reversed Clemens's convictions and remanded his case for a new trial. Id. at ¶ 30. Judge Bernard concurred in part and dissented in part, concluding that the challenged jurors' silence "in response to the court's and defense counsel's questions was an assurance that they would follow the court's instructions." Id. at ¶ 67. He reasoned that "reasonable jurors in these circumstances would only have answered these questions verbally if they still harbored concerns about the prospect that [Clemens] might not testify." Id. at ¶ 58. ¶12 We granted certiorari to determine whether a juror's silence in response to questions posed to the venire can be sufficient evidence of rehabilitation after that juror has indicated a preconceived notion. We hold that it can, and we conclude that the trial court did not abuse its discretion in denying Clemens's challenges for cause because, in light of the totality of the circumstances evinced in the voir dire record, Jurors 7, 10, and 12's silence constituted sufficient evidence supporting the trial court's conclusion that they had been rehabilitated.

         II. ...


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