Opposition Brief — Bradley Raymond Clemens, Petitioner v. Colorado

No. 17-7068

In the Supreme Court of the United States

BRADLEY RAYMOND CLEMENS,

Petitioner,

v.

STATE OF COLORADO,

Respondent.

On Petition for Writ of Certiorari to

The Colorado Supreme Court

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

CYNTHIA H. COFFMAN

Attorney General

L. ANDREW COOPER

Deputy Attorney General

FREDERICK R. YARGER

Solicitor General

Counsel of Record

REBECCA A. ADAMS

Senior Assistant Attorney General

GLENN E. ROPER

Deputy Solicitor General

Colorado Department of Law

Ralph L. Carr Judicial Center

1300 Broadway, 10th Floor

Denver, CO 80203

Fred.Yarger@coag.gov

(720) 508-6168

Counsel for Respondent

QUESTION PRESENTED

Three prospective jurors at Petitioner’s criminal trial expressed possible

reservations about Petitioner’s decision not to testify. The court instructed the

prospective jurors that a defendant’s decision not to testify is his constitutional

right and may not be held against him. After repeated questioning, none of the

three prospective jurors expressed confusion about this instruction or an

unwillingness to follow it. Other jurors did express unwillingness to follow the

instruction and were dismissed for cause. Under the particular circumstances of

Petitioner’s voir dire, the trial court determined that the three prospective jurors

were not biased.

Petitioner now claims that his Sixth Amendment right to an impartial jury

was violated. This violation occurred, he argues, because these three prospective

jurors did not affirmatively state on the record that they would have followed the

trial court’s instructions regarding a defendant’s right not to testify. Yet none of

these prospective jurors actually sat on Petitioner’s jury—he used peremptory

challenges to remove all three of them before his jury was empaneled and sworn.

The question presented is therefore as follows:

Whether the Sixth Amendment right to an impartial jury

requires reversal of a conviction if some prospective jurors

initially displayed the potential for partiality but (1) they

were removed with peremptory challenges and therefore

did not serve on the jury and (2) a judge determined,

based on the totality of the circumstances of the voir dire,

that if they had served on the jury they would have

rendered an impartial verdict.

i

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED........................................................................................ i

STATEMENT OF THE CASE ..................................................................................1

REASONS FOR DENYING THE PETITION..........................................................5

I.

This case is a poor vehicle for addressing the question presented in the

Petition. ............................................................................................................6

A.

Prospective jurors 7, 10, and 12 did not serve on Petitioner’s jury,

and Petitioner did not challenge for cause any other juror who sat

on the jury. ............................................................................................6

B.

Petitioner never challenged prospective juror 36 for cause. ..............8

II. There is no split of authority over whether prospective jurors can be

rehabilitated through silence in response to group questioning, if the

context of the prospective jurors’ silence demonstrates to the court that

they will be impartial. ...................................................................................10

A.

Cases finding insufficient rehabilitation were based on facts not

present in this case. ............................................................................11

B.

Cases finding silence sufficient to rehabilitate did so based on the

context and the totality of the circumstances. ..................................15

CONCLUSION ........................................................................................................17

ii

TABLE OF AUTHORITIES

PAGE

Cases

Bryant v. Brady, 427 S.W.2d 179 (Ark. 1968) ............................................................ 16

Crawford v. Washington, 541 U.S. 36 (2004).............................................................. 14

Doret v. United States, 765 A.2d 47 (D.C. 2000) ......................................................... 14

Georgia v. McCollum, 505 U.S. 42 (1992) ..................................................................... 7

Hughes v. United States, 258 F.3d 453 (6th Cir. 2001) ........................................ 12, 13

Johnson v. Armontrout, 961 F.2d 748 (8th Cir. 1992).......................................... 11, 12

Ma v. People, 121 P.3d 205 (Colo. 2005) ....................................................................... 9

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984) .................... 8

People v. Arnold, 753 N.E.2d 846 (N.Y. 2001) ...................................................... 13, 14

Rivera v. Illinois, 556 U.S. 148 (2009) .......................................................................... 7

Ross v. Oklahoma, 487 U.S. 81 (1988) ...................................................................... 6, 8

State v. Akins, 867 S.W.2d 350 (Tenn. Crim. App. 1993)........................................... 17

State v. Garrison, 276 S.W.3d 372 (Mo. Ct. App. 2009) ............................................. 16

Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001) .................................. 12

Torres v. Thaler, 395 F. App’x 101 (5th Cir. 2010) ..................................................... 16

United States v. Diaz–Albertini, 772 F.2d 654 (10th Cir. 1985) .................................. 8

United States v. Harris, 530 F.2d 576 (4th Cir. 1976) ................................................. 8

United States v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004) ................... 15, 16

United States v. Martinez-Salazar, 528 U.S. 304 (2000) ............................................. 7

United States v. Ragland, 375 F.2d 471 (2d Cir. 1967) ................................................ 8

iii

TABLE OF AUTHORITIES

PAGE

Constitutions

Sixth Amendment ............................................................................................ 6, 7, 8, 11

Rules

Colo. R. Crim. P. 24(b)(2) ............................................................................................... 9

Colo. R. Crim. P. 24(d)(3) ............................................................................................. 10

iv

STATEMENT OF THE CASE

Facts. In June 2010, Petitioner Bradley Clemens threatened to rape his

girlfriend, chased her out of the house when she attempted to flee, and attacked her

with a golf club on the street. He also attacked a bystander who attempted to

intervene and stop the assault. Pet. App. 3a; R. Tr. 472–73, 540, 587–88, 591, 594–

96. 1 Petitioner was charged with second degree assault, third degree assault, and

felony menacing. Pet. App. 3a. He pleaded not guilty, and the case proceeded to a

jury trial. Id.

Voir dire. Before conducting jury selection for Petitioner’s trial, the judge

told prospective jurors that as part of voir dire, she would ask them “general openended question[s]” and that they should raise their hands if they had an answer.

Pet. App. 3a, 45a. Consequently, prospective jurors actively volunteered answers

throughout questioning by the court and counsel. Pet. App. 3a, 45a. The judge also

told the venire 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.” Pet. App. 3a.

In addition to the court’s general, open-ended questions, counsel were

permitted to lead more targeted colloquies with the prospective jurors. Defense

counsel specifically asked whether prospective jurors would hold against Petitioner

his decision to exercise his right not to testify. Prospective juror 25 indicated that he

1 The transcripts of the trial are contained in a single PDF file. Citations are to the

PDF pagination.

needed “to hear both sides of the story” and responded affirmatively when asked

whether he had concerns as to whether he could find Petitioner not guilty if he did

not testify. R. Tr. 410. This questioning of prospective juror 25 led to further

discussion with other prospective jurors, as is common in voir dire. Some of them—

including prospective jurors 7, 10, and 12, who are the subject of the Petition—

indicated a desire to hear from Petitioner during trial. R. Tr. 411–13. Based on

these responses, the trial judge paused the questioning to instruct the venire

regarding the prosecution’s burden of proof and the presumption of innocence. As to

the presumption of innocence, she instructed:

Another very important part of our judicial system is that

the defendant never has to present any evidence or testify

themselves. And you cannot use that fact that a

defendant does not take the stand as any evidence one

way or the other. It is—it’s just not a factor to be taken

into consideration. … [A] defendant for whatever reason

they want to can choose not to take the stand.

R. Tr. 421–22. Following this instruction, the trial judge then asked all the

prospective jurors whether they would be unable to follow the law as she had

outlined:

And 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 evidence to prove the case; anyone who

would do that?

R. Tr. 421–22.

In response to this inquiry, prospective juror 25 spoke up and affirmed that

regardless of the court’s instructions, he would find Petitioner guilty if he did not

2

testify because “If he doesn’t want to get up there and defend himself, he’s got

something to hide. And to me that’s guilty.” R. Tr. 423. At a bench conference,

counsel for both the prosecution and defense agreed that it would be appropriate to

dismiss prospective juror 25 for cause. R. Tr. 423–24; see also id. at 435.

Defense counsel then pursued the subject further, asking all of the

prospective jurors whether any “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?” R. Tr.

425. Prospective juror 47 answered affirmatively and was later dismissed for cause.

R. Tr. 425, 436. Juror 48 likewise answered affirmatively and was also dismissed for

cause. R. Tr. 425, 436.

Defense counsel then asked the venire—once again—whether anyone else

had more to say on the topic, and she spoke specifically to prospective juror 11

because she had been nodding during the judge’s instruction. Prospective juror 11

responded that she had nodded because she “was listening” to the court’s

instructions and was “glad to have the added information about how to approach it.”

R. Tr. 426. The three prospective jurors at issue here—prospective jurors 7, 10, and

12—did not affirmatively respond to the judge’s or defense counsel’s repeated

follow-up inquiries or indicate any inability or unwillingness to follow the court’s

instructions. Defense counsel did not further question them and moved on to

another topic.

At the conclusion of voir dire, the trial court granted multiple challenges for

cause, including challenges to prospective jurors 25, 47, and 48, who—as discussed

3

above—maintained, despite the court’s instructions, that they would need

Petitioner to testify in order to find him not guilty. Defense counsel challenged

additional prospective jurors for cause, including Jurors 7, 10, and 12, arguing that

they had indicated they would have difficulty following the law if Petitioner did not

testify. R. Tr. 435–37.

The trial court denied the challenges for cause as to prospective jurors 7, 10,

and 12, finding that its admonition regarding a defendant’s right not to testify was

sufficient to rehabilitate the jurors:

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 Number 25.

R. Tr. 437–38.

Defense counsel used peremptory challenges to remove prospective jurors 7,

10, and 12. R. Tr. 442. She exhausted Petitioner’s six allotted peremptory

challenges and did not request any additional challenges. R. Tr. 441–43.

Appellate proceedings. Petitioner was convicted of both assault counts but

was acquitted of felony menacing. Pet. App. 6a. He appealed to the Colorado Court

of Appeals, asserting that the trial court erred in denying his challenges for cause to

prospective jurors 7, 10, and 12.

The court reversed, holding 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.” Pet. App.

4

29a. One judge dissented and would have held that the silence of prospective jurors

7, 10, and 12 “in response to the court’s and defense counsel’s questions was an

assurance that they would follow the court’s instructions.” Id. at 53a (Bernard, J.,

dissenting).

The Colorado Supreme Court granted certiorari and reversed the court of

appeals, affirming Petitioner’s convictions. Pet. App. 2a. The court did not adopt any

sort of categorical rule or hold that silence in response to questioning is always

sufficient to rehabilitate a prospective juror. Instead, it recognized the discretionary

judgments that are necessary for trial judges to make, based on the entire

circumstances. The court held 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

trial.” Pet. App. 2a.

Three justices dissented and would have instead adopted a rule “requir[ing]

trial courts to ask each reluctant juror after further admonition whether the juror

can apply the law as that juror has been instructed.” Pet. App. 15a (Hood, J.,

dissenting).

REASONS FOR DENYING THE PETITION

There are no compelling reasons to grant certiorari in this case. As an initial

matter, this case is a poor vehicle to address the question presented. The three

5

challenged jurors here did not in fact sit on the jury, and Petitioner failed to object

to a fourth juror he claims was improperly biased. Petitioner therefore cannot

establish a violation of his federal constitutional rights even if the question

presented were decided in his favor.

Separately, Petitioner’s purported split of authority is not a split at all. The

cases he cites arrived at different outcomes based on differing underlying facts.

Granting certiorari would not resolve any confusion among lower courts.

I.

This case is a poor vehicle for addressing the question

presented in the Petition.

Petitioner’s Sixth Amendment claim is contrary to two lines of precedent

clearly established by this Court. The first holds that the Sixth Amendment is not

implicated when a defendant is required to use peremptory challenges in selecting

jurors and no juror challenged for cause actually sits on the jury. The second holds

that the failure to object to a particular juror for cause waives any Sixth

Amendment objection. Both lines of precedent apply directly to the facts of this case,

and both demonstrate that this case does not warrant the Court’s review.

A.

Prospective jurors 7, 10, and 12 did not serve on

Petitioner’s jury, and Petitioner did not challenge

for cause any other juror who sat on the jury.

This Court has consistently “reject[ed] the notion that the loss of a

peremptory challenge constitutes a violation of the constitutional right to an

impartial jury.” Ross v. Oklahoma, 487 U.S. 81, 88 (1988). Instead, “[s]o long as the

jury that sits is impartial, the fact that the defendant had to use a peremptory

challenge to achieve that result does not mean the Sixth Amendment was violated.”

6

Id. As this Court stated in Rivera v. Illinois, “[i]f a defendant is tried before a

qualified jury composed of individuals not challengeable for cause, the loss of a

peremptory challenge due to a state court’s good-faith error is not a matter of

federal constitutional concern.” 556 U.S. 148, 157 (2009); cf. Georgia v. McCollum,

505 U.S. 42, 57 (1992) (holding that states may withhold peremptory challenges

“altogether without impairing the constitutional guarantee of an impartial jury and

a fair trial”). 2

This well-established principle is fatal to Petitioner’s claim that his Sixth

Amendment rights were violated in this case. Defense counsel initially challenged

prospective jurors 7, 10, and 12 for cause, arguing that they must be disqualified

because they had indicated they would have had difficulty acquitting Petitioner if

he did not testify. R. Tr. 437. But after the trial court denied the challenges for

cause, Petitioner used peremptory challenges to remove the three prospective

jurors. R. Tr. 442. Thus, none of the three challenged prospective jurors were seated

on the jury.

Further, no other juror challenged for cause served on Petitioner’s jury. Every

juror Petitioner challenged for cause was removed from the panel on either a forcause or peremptory basis. 3

2 Nor is due process violated if a defendant is required to use a peremptory

challenge to remove a juror that the trial court should have removed for cause.

United States v. Martinez-Salazar, 528 U.S. 304, 315–17 (2000).

3 Petitioner had challenged prospective juror 9 for cause on the same grounds as

prospective jurors 7, 10, and 12, but the prosecution removed prospective juror 9

with its own peremptory challenge. R. Tr. 440.

7

Under this Court’s clear precedent, even if the three challenged prospective

jurors displayed improper bias and were not rehabilitated by the trial court’s

instructions—a point the State does not concede—the fact that Petitioner was

required to use peremptory challenges to exclude them “does not mean the Sixth

Amendment was violated.” Ross, 487 U.S. at 88.

B.

Petitioner never challenged prospective juror 36

for cause.

Petitioner attempts to avoid the precedent that forecloses his Sixth

Amendment claim by arguing that another juror who did sit on the jury, prospective

juror 36, also “indicated potential bias and was challengeable for cause.” Pet. 15.

But Petitioner has waived this argument. He never challenged juror 36 for cause,

nor did he assert at trial that her presence on the jury denied him his right to an

impartial jury. See R. Tr. 435–38. This is why none of the opinions below, in either

the court of appeals or the Colorado Supreme Court, even mentions juror 36.

Injecting the issue of juror 36’s fitness for the jury into this case now does not

transform a losing Sixth Amendment claim into a winning one.

A defendant waives his right to challenge alleged juror bias by failing to

object when the alleged bias is revealed during jury selection. See McDonough

Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 550 n.2 (1984) (concluding that

a litigant waives any objection to the composition of the jury by failing to pursue the

matter in a timely fashion); United States v. Ragland, 375 F.2d 471, 475 (2d Cir.

1967) (“Failure to object to the composition of the jury has long been held to result

8

in a waiver of the right of the accused to be heard by an impartial jury.”). 4 Here,

defense counsel’s only statements to the court about juror 36 came after she was

seated on the jury, when defense counsel stated in a bench conference that juror

36’s “color seemed to change when I questioned her [about it being a domestic

violence case]” and that “I can’t tell if she looks upset or not just by the nature of the

offense.” R. Tr. 443–44. But defense counsel did not ask the court to remove or take

any further action with respect to juror 36. By failing to challenge or object to juror

36 being seated on the jury, Petitioner has waived any claim that she should have

been excused on grounds of bias or partiality. 5 There was therefore no constitutional

error as to juror 36.

In any event, Petitioner’s claim that juror 36 was biased is unsupported by

the record. He cites juror 36’s statements that she had a “visceral” reaction to this

being a domestic violence case and that she was “concerned [her] mind would go

4 See also United States v. Diaz–Albertini, 772 F.2d 654, 657 (10th Cir. 1985) (“[A]

defendant, by accepting a jury, waives his right to object to the panel.”); United

States v. Harris, 530 F.2d 576, 579 (4th Cir. 1976) (“Where the basis for a challenge

to a juror could be timely shown the failure of the defendant to object at the

inception of the trial constituted a waiver of his right to challenge the composition of

the jury.”); Ma v. People, 121 P.3d 205, 209 (Colo. 2005) (“A challenge for cause is

waived if counsel fails to use reasonable diligence during jury selection to determine

whether the grounds for such a challenge exist,” and “[t]he test for reasonable

diligence is whether counsel took the opportunity to adequately question a

prospective juror.”).

5 After the jury was sworn, defense counsel sought to “supplement [the] record” by

stating that juror 36 “seemed very upset so I didn’t know if there was something

that should have been further inquired on or about.” R. Tr. 112, 115. But even if

that were construed as an objection to juror 36, as a matter of state law, “[a]ll

matters pertaining to the qualifications and competency of the prospective jurors

shall be deemed waived by the parties if not raised prior to the swearing in of the

jury to try the case.” Colo. R. Crim. P. 24(b)(2).

9

somewhere else,” Pet 16, but those are hardly an indication of bias or partiality

against either the prosecution or the defense, and defense counsel chose not to

question juror 36 further. R. Tr. 427. Moreover, juror 36 clearly stated that her

views on domestic violence would not affect her ability to be impartial. When asked

whether she would “find somebody guilty simply because they are charged with

domestic violence,” juror 36 answered “No.” R. Tr. 380. And when asked whether

the nature of the domestic violence case would raise “concerns that you could sit

here and judge fairly as a juror,” juror 36 responded “I think I could judge fairly.” R.

Tr. 428. There is no basis on this record that would have supported a challenge for

cause (if it had not been waived) or that would now justify a conclusion that juror

36’s presence rendered the jury “not impartial and unprejudiced.” Pet. 16–17

(quotation omitted). 6

II.

There is no split of authority over whether prospective

jurors can be rehabilitated through silence in response to

group questioning, if the context of the prospective

jurors’ silence demonstrates to the court that they will be

impartial.

The Colorado Supreme Court did not hold that silence is always sufficient to

rehabilitate a prospective juror. Rather, it held that a trial court may, in its

discretion, conclude that silence is sufficient when “in light of the totality of the

6 Petitioner’s claim that he was foreclosed from using a peremptory challenge on

juror 36 because he exhausted his peremptory challenges on prospective jurors 7,

10, and 12, see Pet. 16, is also a misstatement of state law. The Colorado Rules of

Criminal Procedure expressly allow parties to request additional peremptory

challenges, which Petitioner did not do. Colo. R. Crim. P. 24(d)(3) (“For good cause

shown, the court at any time may add peremptory challenges to either or both

sides.”).

10

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.” Pet. App. 2a. In other words, the Colorado Supreme Court did what all courts

have done—it evaluated juror silence in light of the context and the totality of the

circumstances. Although Petitioner argues that federal circuit courts and state high

courts are divided over whether silence can sufficiently rehabilitate a prospective

juror who has indicated a potential bias, see Pet. 7–11, the different results in the

cited cases are explained by the specific facts at issue rather than a significant

conflict regarding the Sixth Amendment.

A.

Cases finding insufficient rehabilitation were

based on facts not present in this case.

The three federal and two state cases cited by Petitioner as being on the

other side of the purported split from Colorado do not hold that silence can never

sufficiently rehabilitate a prospective juror who has indicated a potential bias.

Rather, each involved general questioning—not directed to the specific potential

bias at issue—that was held to be insufficient to rehabilitate the prospective juror

under the circumstances presented.

In Johnson v. Armontrout, 961 F.2d 748, 750 (8th Cir. 1992), the Eighth

Circuit upheld the grant of habeas relief to Johnson due to ineffective assistance of

counsel based on “[t]he exceptional circumstances of [his] case.” Id. at 754.

Specifically, defense counsel had failed to challenge four recycled jurors who sat on

the jury that previously convicted a co-defendant in the same robbery. During that

earlier trial, there had been “damaging testimony” about Johnson, who had been

11

“presented to [the jury] in shackles and under guard.” Id. at 754–55. The court held

that given these circumstances, “ambiguous silence” by the four jurors in response

to a general question about bias was insufficient to support a finding of fact that

they were impartial. Id. at 754 (“The exceptional circumstances of this case

warranted more aggressive questioning during voir dire.”).

In Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), a prospective

juror in a civil trial stated during voir dire that her experience as a business owner

“will cloud my judgment” because she believed that some claims against employers

are spurious and that “people file lawsuits just because they don’t get something

they want.” Id. at 624. After she was nonetheless seated on the jury, the judge

asked the general question of whether the jurors would follow the court’s

“instructions on the law even if they didn’t agree with them and whether they

would be able to suspend judgment until they had heard all the evidence.” Id. The

jurors all responded to that general question by “either nodd[ing] their heads or

sa[ying] yes.” Id. But the offending juror was never again asked about her

particular comments during voir dire or her belief about spurious lawsuits against

employers. The Seventh Circuit held that in those circumstances, an affirmative

answer to a general question about bias was insufficient to establish that the

challenged juror would “relinquish her prior beliefs for purposes of deciding the

case.” Id. at 626.

In Hughes v. United States, 258 F.3d 453, 456 (6th Cir. 2001)—another

habeas case involving a claim of ineffective assistance of counsel—a prospective

12

juror had plainly stated that due to her personal relationships with law

enforcement, she did not think she could be fair. “[N]either counsel nor the court

offered any response to [her] declaration or follow-up questions,” and she was seated

on the jury. Id. at 458. Citing “the compelling circumstances presented by the facts

of this case,” the Sixth Circuit held that the biased juror’s “silent response … to

generalized questioning on the subjects of prior conviction, drug involvement, and

police credibility” did not provide “an assurance of impartiality” because the general

questioning did not address the juror’s “particular bias arising from her personal

relationships.” Id. at 458, 461 (emphasis added).

The court in People v. Arnold, 753 N.E.2d 846, 851–52 (N.Y. 2001) also held

that an affirmative response to a generalized question was insufficient. A

prospective juror stated that she thought her studies in sociology and women’s

studies would make her “in effect become another witness in the [domestic violence]

case, an expert if you will, on that area.” Id. at 849. Later in the voir dire, defense

counsel asked the full panel whether “they could follow the law as instructed by the

court,” and whether they agreed that they would not use this case as a

“referendum” on “crime, domestic abuse or violence in the streets.” Id. at 849–50.

The prospective jurors “indicat[ed] yes,” but the appellate court held that this

response “was insufficient to constitute an unequivocal declaration of impartiality”

from the challenged juror because the “group answer … did not address her

personal attitudes, nor did it force her to confront the crucial question whether she

13

could be fair to this defendant in light of her expressed predisposition.” Id. at 850–

52. 7

Finally, in Doret v. United States, 765 A.2d 47, 55 (D.C. 2000), abrogated on

other grounds by Crawford v. Washington, 541 U.S. 36 (2004), defense counsel was

precluded from asking follow-up questions of prospective jurors who had

relationships to law enforcement agencies, defense attorneys, or defense

investigators. On review, the appellate court held that the trial court had

impermissibly limited defense counsel’s voir dire and that the jurors’ silence in

response to “a general question regarding their ability to be fair and impartial

jurors despite their family or close relationships with persons in the law

enforcement field” was insufficient to ensure their impartiality and fairness. Id. at

56. That general question, the court held, failed to “explore[ ] the relationship

between the identified law enforcement person and the prospective juror.” Id. at 55.

In contrast, the court here did not limit counsel’s ability to follow up with the

prospective jurors about potential bias, and defense counsel actually asked followup questions of each of the challenged jurors. R. Tr. 410–13.

7 The dissent in Clemens relied on Arnold for the proposition that “nothing less than

a personal, unequivocal assurance of impartiality can cure a juror’s prior indication

that she is predisposed against a particular defendant or particular type of case.”

Pet. App. at 19a (Hood, J., dissenting) (quoting Arnold, 753 N.E.2d at 852).

However, unlike the situation presented here, the court in Arnold did not even

attempt to rehabilitate the prospective juror. By contrast, the trial court in this case

asked the jurors specific questions focused on the potential bias at issue, namely the

defendant’s decision not to testify, and allowed defense counsel to do the same.

14

None of these cases held that silence can never sufficiently rehabilitate a

prospective juror who has indicated a potential bias during jury selection. They

stand only for the proposition that silence (or even assent) in response to a general

question about bias can be insufficient under some circumstances. In Petitioner’s

case the relevant circumstances were very different. The trial court not only gave

specific instructions and asked narrow and focused questions on one particular

category of bias, but allowed defense counsel to do the same. After prospective

jurors expressed a need to hear Petitioner’s testimony, the court provided extensive

instructions on the right not to testify, then specifically asked whether there was

“[a]nyone here who cannot follow that instruction.” R. Tr. 422. One juror responded

affirmatively and was removed for cause. R. Tr. 422–23. In response to follow-up

questioning by defense counsel on the same issue, two additional jurors responded

that they still needed to hear from Petitioner and were likewise removed for cause.

R. Tr. 436. In light of the extensive instruction from the trial court, the specific

questions from both the court and defense counsel, the other jurors’ responses, and

the silence of some prospective jurors after repeated inquiry, the totality of the

circumstances provided sufficient assurance from which the trial court, in its

discretion, could conclude that prospective jurors 7, 10, and 12 were unbiased. None

of the cases cited in the Petition are to the contrary.

B.

Cases finding silence sufficient to rehabilitate did

so based on the context and the totality of the

circumstances.

Numerous other courts have concluded, consistent with the Colorado

Supreme Court’s decision, that silence may constitute an assurance of impartiality

15

sufficient for the purpose of rehabilitation—again based on the context and the facts

presented.

For example, in United States v. Martinez-Martinez, 369 F.3d 1076, 1082–83

(9th Cir. 2004), a juror raised his hand and indicated discomfort with a legal

concept an attorney had explained. But the trial court concluded that he had been

rehabilitated because he did not respond when the prosecutor asked the jurors

whether there was “anybody in here who would not be able to put aside [his or her]

daily experiences … and apply the facts that you will hear from the witnesses … to

the law that [the trial judge] will provide for you at the end of this trial?” Id. at

1080. The Ninth Circuit held that “[i]n the context of the voir dire, that [juror’s]

failure to respond [to the question posed to the entire venire] can be construed as a

commitment by [the juror] to follow the law.” Id. at 1082. In contrast, the

prospective juror’s silence in response to a different question by the trial court was

not sufficient to rehabilitate him because the context of that particular question

“suggested … that he need not renew his objection to the proposition described by

defense counsel.” Id.; see also Torres v. Thaler, 395 F. App’x 101, 108 (5th Cir. 2010)

(“[W]hen the trial judge asked the panel whether anyone was unable to properly

follow the laws of presumption of innocence and burden of proof, Gorman remained

silent, indicating his ability to follow the law.”).

Similarly, the Missouri Court of Appeals has held that “[a] venireperson’s

silence may constitute an unequivocal assurance of impartiality sufficient for the

purpose of rehabilitation.” State v. Garrison, 276 S.W.3d 372, 377 (Mo. Ct. App.

16

2009) (discussing juror silence in response to multiple specific follow-up questions

by the prosecution). And courts in Arkansas and Tennessee have reached similar

conclusions. See Bryant v. Brady, 427 S.W.2d 179, 180 (Ark. 1968) (“[W]here other

jurors understood the questions and responded [disclosing their relationship with

the party], we must accept the jurors’ silence as a responsive answer to the court’s

questions.”); State v. Akins, 867 S.W.2d 350, 355 (Tenn. Crim. App. 1993) (“Silence

on the juror’s part when asked a question reasonably calculated to produce an

answer is tantamount to a negative answer”). Each of these decisions was based on

the specific context and totality of the circumstances, and does not indicate a “split

of authorities” or “widespread confusion” as claimed by Petitioner.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

CYNTHIA H. COFFMAN

Attorney General

L. ANDREW COOPER

Deputy Attorney General

/s/ Frederick R. Yarger

FREDERICK R. YARGER

Solicitor General

Counsel of Record

REBECCA A. ADAMS

Senior Assistant Attorney General

GLENN E. ROPER

Deputy Solicitor General

Colorado Department of Law

Ralph L. Carr Judicial Center

1300 Broadway, 10th Floor

Denver, CO 80203

Fred.Yarger @coag.gov

(720) 508-6168

Counsel for Respondent

March 12, 2018

17

No. 17-7068

In the Supreme Court of the United States

BRADLEY RAYMOND CLEMENS,

Petitioner,

v.

STATE OF COLORADO,

Respondent.

Certificate of Service

I, Frederick R. Yarger, a member of the Bar of the United States Supreme Court,

certify that on March 12, 2018, as required by Supreme Court Rule 29, caused the foregoing

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI to

be electronically filed with the Clerk of the U.S. Supreme Court, and in accordance with

Supreme Court Rule 39.5, delivered the original Brief and ten copies to the Clerk of this

Court, by depositing said Brief into the U.S. mail in a properly addressed, first class

postage pre-paid envelope; and also to be served on the Petitioner, via electronic mail and

by depositing copies into the U.S. mail in a properly addressed, first class postage pre-paid

envelope, to counsel of record as follows:

Jon W. Grevillius

Office of the Colorado State

Public Defender

1300 Broadway St., Ste. 300

Denver, CO 80203

(303) 764-1400

Jeffrey T. Green*

Kyle J. Fiet

Sidley Austin LLP

1501 K Street, N.W.

Washington, DC 20005

jgreen@sidley.com

(202) 736-8000

*Counsel of Record

Sarah O’Rourke Schrup

Northwestern Supreme

Court Practicum

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0063

/s/ Frederick R. Yarger

Frederick R. Yarger

Solicitor General

Counsel of Record

Colorado Department of Law

Ralph L. Carr Colorado Judicial Center

1300 Broadway, 10th Floor

Denver, CO 80203

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