People v. Clemens
| Decision Date | 05 December 2013 |
| Docket Number | Court of Appeals No. 11CA1460 |
| Citation | 417 P.3d 833 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Bradley Raymond CLEMENS, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
John W. Suthers, Attorney General, Rebecca A. Jones, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, Jon W. Grevillius, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by JUDGE WEBB
¶ 1 Based on an altercation with the female victim and a male bystander who intervened, defendant, Bradley Raymond Clemens, was convicted of assault in the second degree (female victim) and assault in the third degree (bystander). He appeals on four grounds: (1) the trial court abused its discretion in denying three of his challenges for cause; (2) the trial court erred in referring to the prospective jurors only by number; (3) the trial court erred in denying his motion to suppress because the police entered his home without a warrant and arrested him; and (4) the trial court abused its discretion in admitting evidence of the female victim's statements that Clemens had threatened to rape her and of Clemens' question to the booking officer whether she had accused him of rape.
¶ 2 We agree with Clemens' first contention, which raises an unresolved question of law in Colorado, reverse the judgment, and remand the case for a new trial.
¶ 3 During voir dire, a prospective juror, who was later dismissed for cause, raised concerns about his ability to return a not-guilty verdict if Clemens declined to testify. Defense counsel then asked the entire venire if others felt similarly. In response, prospective jurors 7, 10, and 12 each expressed similar concerns as to their ability to fairly weigh the evidence presented without hearing from Clemens.
Prospective juror 12 was the first to suggest "real concerns."
¶ 4 Defense counsel asked the venire if anyone else agreed. Prospective juror 10 replied, Counsel asked, "Even though the Judge may instruct you that you can't use that as [an] inference of guilt, you have real concerns you would use that as an inference of guilt?" Prospective juror 10 again answered, "Yes."
¶ 5 Next, defense counsel asked prospective juror 7, "You have concerns that if Mr. Clemens doesn't testify as is his right, that you would have trouble following the Judge's instruction that you may not use his exercising of the right to remain silent, that you would use that against him?" Prospective juror 7 also replied, "Yes."
¶ 6 Following these exchanges, the trial court explained three bedrock principles of criminal law to the entire venire: the prosecution bears the burden of proof; the defendant is not required to testify; and if the defendant chooses not to testify, that fact cannot be used in jury deliberations.1 In response, another juror expressed reluctance to apply the law, saying that he would hold Clemens' decision not to testify against him. This juror was also dismissed for cause.
¶ 7 Defense counsel then resumed voir dire and asked the venire whether "anybody ... 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." Two other jurors, who also were both dismissed for cause later, expressed concerns about their ability to fairly weigh the evidence without hearing from Clemens. Again, defense counsel turned to the venire and asked if "anybody else ha[d] anything more to say" on the matter. But this time, the venire was silent.
¶ 8 At the conclusion of voir dire, defense counsel challenged prospective jurors 7, 10, and 12 for cause based on their earlier statements. The court denied each challenge. As to prospective juror 12, the court explained:
I think 12 didn't—I did not see after my admonition to the jury about the question regarding the defendant not having to testify. I don't think that 12 gave this strong indication ... that she could not follow the instructions [of] the court, unlike [the other prospective jurors who were dismissed for cause], continued to maintain that position even after my admonition.
As to prospective jurors 7 and 10, the trial court added:
My recollection is that after I gave the instruction about not speculating and how that is an important part of our judicial system, one juror particularly noted that that helped explain it. And when I asked the rest of the panel if any of them could not follow that, there were no others that indicated [they could not] except for [a prospective juror dismissed for cause].
Defense counsel removed prospective jurors 7, 10, and 12 with peremptory challenges and exhausted all of his remaining challenges.
¶ 9 Because of the trial court's superior position to assess a prospective juror's demeanor and credibility, People v. Young, 16 P.3d 821, 824 (Colo.2001), challenges for cause are reviewed for abuse of discretion, Medina v. People, 114 P.3d 845, 856 (Colo.2005). This standard is highly deferential. Carrillo v. People, 974 P.2d 478, 485–86 (Colo.1999).
¶ 10 But appellate courts must not "abdicate their responsibility to ensure that the requirements of fairness are fulfilled."
Morgan v. People , 624 P.2d 1331, 1332 (Colo.1981). Thus, although we must affirm if "the record contains a general statement by a juror that, despite any preconceived bias, he or she could follow the law and rely on the evidence at trial," People v. Phillips , 219 P.3d 798, 802 (Colo.App.2009), we will reverse if a prospective juror's statements "compel the inference that he or she cannot decide crucial issues fairly and there is no rehabilitative questioning or other counter-balancing information," People v. LePage , 2011 WL 544019, 397 P.3d 1074 (Colo.App. No. 09CA0676, Feb. 17, 2011) (internal quotation marks omitted), cert. granted on other grounds , No. 11SC235, 2011 WL 4015578 (Colo. Sept. 12, 2011).
¶ 11 Many Colorado cases have addressed challenges for cause to prospective jurors who, as here, expressed a need to hear "both sides" before rendering a verdict. See, e.g., Morgan, 624 P.2d at 1332 (); LePage, 397 P.3d at 1083 (); People v. Blackmer, 888 P.2d 343, 344–45 (Colo.App.1994) ().
¶ 12 The initial statements by prospective jurors 7, 10, and 12 established sufficient grounds to challenge them for cause. Unless they were rehabilitated, the trial court abused its discretion in denying the challenges for cause.
¶ 13 In People v. Hancock, 220 P.3d 1015, 1019 (Colo.App.2009), the division held that the trial court had abused its discretion in denying a challenge for cause to a juror who had made a disqualifying statement because the record showed neither successful rehabilitative questioning nor counter-balancing information. The division explained that a trial court should do one of three things when faced with a juror who indicates an unwillingness to apply the law: (1) dismiss the juror for cause; (2) follow-up with "effective rehabilitative questioning prior to denying the challenge for cause"; or (3) make a credibility finding sufficient to explain why the "statements of doubt in [the juror's] willingness or ability to follow the law should be disregarded." Id. at 1019–20.
¶ 14 Here, the trial court attempted to satisfy the second requirement by responding to the jurors' statements with a lengthy admonishment and then asking the venire whether it could apply the law as explained. Clemens does not dispute the adequacy of the admonition, nor does the record afford any basis for doing so.
¶ 15 But this leaves unanswered the question whether these prospective jurors' silence, despite repeated questions to the venire, constituted sufficient rehabilitation. Because no Colorado case has addressed whether such silence is sufficient rehabilitation, we consider evidentiary principles, cases from other jurisdictions dealing with rehabilitation based on silence, and Colorado cases on rehabilitation of prospective jurors. We conclude that, where a prospective juror has taken a position supporting a challenge for cause, that juror's silence following a question or questions to the entire panel does not constitute sufficient rehabilitation.
¶ 16 In certain circumstances, silence may be evidence of an affirmative response.2 But the silence of a prospective juror who has made a problematic statement raises two concerns.
¶ 17 First, "[s]ome prospective jurors undoubtedly find voir dire intimidating," United States v. Hill, 552 F.3d 541, 548 (7th Cir.2008), and thus, they may be more reluctant to volunteer a response when questions have been posed to the venire than when questioned individually. Second, a prospective juror's silence affords the trial court very little, if any, basis...
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Section 7 SECURITY OF PERSON AND PROPERTY - SEARCHES - SEIZURES - WARRANTS.
...victims, it was reasonable for the officers to believe they had the authority to forcibly enter the home. People v. Clemens, 2013 COA 162, 417 P.3d 833, rev'd on other grounds, 2017 CO 89, 401 P.3d 525. Although defendant may limit the scope of his consent, and when this occurs the police m......