County District Court No. 12CR2275 Honorable Dennis J. Hall,
Cynthia H. Coffman, Attorney General, Jillian J. Price,
Assistant Attorney General, Denver, Colorado, for
Johnson, Brennan & Klein, PLLC, Gail K. Johnson, Boulder,
Colorado, for Defendant-Appellant.
1 We decide in this case whether reversal is required under
People v. Novotny, 2014 CO 18, where the trial court
erroneously denies a challenge for cause based on a statutory
disqualification as to a prospective juror and that person
sits on the jury. The Colorado Supreme Court in
Novotny departed from its prior holdings that an
error which impacted a substantial statutory right must
result in automatic reversal as such an error could not be
deemed harmless. Instead, the court held that "reversal
of a criminal conviction for other than structural error, in
the absence of express legislative mandate or an appropriate
case specific, outcome-determinative analysis, can no longer
be sustained." Id. at ¶ 27.
2 Arguably, outcome-determinative prejudice is absent in this
case. While the majority concludes that reversal is
nevertheless required under Novotny, based on the
denial of the defense challenge for cause to a compensated
employee of a public law enforcement agency, we disagree to
some extent as to the analysis that should be employed. We
reverse the judgment of conviction and remand for a new
3 A jury convicted Abdu-Latif Kazemba Abu-Nantambu-El of
multiple offenses against two victims, including first degree
murder (felony murder); second degree murder; first degree
burglary (assault/menace); and first degree burglary (armed
with explosives/weapon). Based on the denial of the defense
challenge for cause to a compensated employee of a public law
enforcement agency, we reverse the judgment of conviction and
remand for a new trial.
4 According to the prosecution's evidence, defendant
knocked on the door to an apartment of the decedent's
friend, a woman whom defendant had met a few days earlier.
When she opened the door, he forced his way in and struck the
woman. The decedent and his wife were also inside the
5 Defendant then attacked the decedent. Their struggle
spilled over into the kitchen, where defendant picked up a
knife and repeatedly stabbed the decedent. Defendant also
struck the friend several more times. The decedent and his
wife eventually fled, but he died from the stab wounds during
transport to a hospital.
6 When the friend attempted to flee, defendant dragged her
back into the apartment by her hair. He forced her to clean
up some of the decedent's blood.
Reversal is Necessary Because the Trial Court Erred in
Denying Defendant's Challenge for Cause to Juror J
7 Juror J described her employment as being a financial grant
manager for the State of Colorado. She explained:
I am currently employed with the Colorado Division of
Criminal Justice, which is housed in the Department of Public
Safety. I don't feel that the division is law enforcement
even though the state patrol and CBI are in our department. I
see state troopers down the hall because we're in the
same building, but I couldn't tell you their names.
That's the kind of contact I have with them. We give
department, federal, Department of Justice grants out to drug
treatment and criminal history records, things like that,
juvenile justice crime prevention programs and drug
treatment. I don't have any close relatives or friends in
the law enforcement arena. I don't have any training in
response to later questioning by defense counsel, she added:
PROSPECTIVE JUROR J: I don't think it would be a problem
because I don't work directly with law enforcement. We
fund a lot of law enforcement agencies and DA's offices
and things like that, but it's on different kinds of
MR. CALVERT: Could you tell me a little more about the nature
of the funding and who you fund and so forth. I'm not
trying to put you on the spot. Is it a fair question?
PROSPECTIVE JUROR J: It is. We get federal money from the
Department of Justice and we are a pastor [sic] entity and we
give grants to - well, basically one of the biggest programs
we receive funds [for] basic law enforcement like a police
car, radios, whatnot all the way up to criminal victim. We
fund a broad range of that. A lot of prevention and education
and treatment for drugs and alcohol.
MR. CALVERT: Do you deal with the law enforcement agencies
PROSPECTIVE JUROR J: Finance people.
MR. CALVERT: You deal with their finance departments?
PROSPECTIVE JUROR J: I am a financial grant manager, so money
that - grants that get awarded through the competitive - we
have an advisory board and they give the grant out and they
award them. I have to deal with the contracts which are - I
audit the grant so I'll go out to an agency possibly and
look through their accounting ledgers, make sure they're
maintaining. I've got a frog -
MR. CALVERT: I'm sorry to ask you so many questions.
PROSPECTIVE JUROR J: I would audit them and make sure
they're handling the federal funds through federal
regulations. Since I'm in the finance end of it, I
don't work - there are grant managers at the office. I
work with that - work with the agencies.
MR. CALVERT: Did you say this was the division of -
PROSPECTIVE JUROR J: Division of Criminal Justice.
MR. CALVERT: This is a state entity?
PROSPECTIVE JUROR J: State agency.
MR. CALVERT: Is this division under a broader umbrella?
PROSPECTIVE JUROR J: Department of Public Safety. So in the
Department of Public Safety you've got Homeland Security
and emergency management. You have your FEMA [Federal
Emergency Management Agency] and Homeland Security funds
coming from the federal government, state controlled.
You've got the Colorado Bureau of Investigation.
MR. CALVERT: Is the agency you work for a federal or state?
PROSPECTIVE JUROR J: State.
8 Defense counsel challenged Juror J because "she is a
full-time employee of a Colorado law enforcement agency,
" thereby preserving the issue. The prosecutor argued
against the challenge. The trial court focused on Juror
J's duties and denied the challenge.
9 Defense counsel used all twelve peremptory challenges, but
left Juror J on the jury. So did the prosecutor. But now, the
Attorney General concedes that the court should have excused
the juror as a compensated employee of a law enforcement
agency. Nevertheless, the Attorney General argues on appeal
that reversal is not required because voir dire of the juror
did not indicate that she was actually biased.
Standards of Review and of Reversal
10 An appellate court reviews de novo whether a prospective
juror is a compensated employee of a public law enforcement
agency. Novotny, ¶ 53 (Hood, J., concurring in
part and dissenting in part); People v. Sommerfeld,
214 P.3d 570, 572 (Colo.App. 2009). On this much, the parties
11 As for the standard of reversal, both parties appear to
apply the outcome-determinative test under Novotny,
but disagree as to whether that test was
satisfied. Defendant does not invoke the structural
error doctrine, but rather urges that an impliedly biased
juror who sits on the jury violates a defendant's
constitutional right to a fair and impartial jury. The
Attorney General responds that, in applying the
outcome-determinative test under Novotny, the
conviction need not be reversed because the juror did not
suffer from an actual bias that would have prevented her from
rendering a fair and impartial decision.
12 Novotny, like this case, involved the erroneous
denial of a challenge for cause to a prospective juror who
was a compensated employee of a public law enforcement
agency. But in Novotny, defense counsel removed the
juror with a peremptory challenge. Recall, in this case,
defense counsel did not.
13 Although the supreme court has applied Novotny in
several later cases, none of them involved the scenario in
which a juror who should have been excused for cause remained
on the jury. Consequently, the supreme court has not
clarified how the outcome-determinative test adopted in
Novotny is to be satisfied. See Novotny,
¶ 30 (Hood, J., concurring in part and dissenting in
part) (noting that the majority fails to explain how a
defendant can ever demonstrate prejudice under this
14 In cases leading up to Novotny, the supreme court
reasoned that defense counsel's use of a peremptory
challenge to cure the trial court's erroneous denial of a
challenge for cause impaired a defendant's substantial
statutory right to use peremptory challenges to change the
composition of the jury selected to try the case and could
not be deemed harmless. See id. at ¶ 14;
People v. Macrander, 828 P.2d 234, 246 (Colo. 1992),
overruled by Novotny, 2014 CO 18. Later, however, in
Novotny, the supreme court made an about-face and
departed from the position that reversal for trial error
could be based "solely on the significance, or
substantiality, of the affected right."
Novotny, ¶ 26.
15 At first blush, the supreme court appears to have adopted
only two categories for reversal - (1) structural error,
requiring automatic reversal; or (2) trial error, requiring
reversal where there is outcome-determinative prejudice. The
court recognized that
[w]ith regard to harmless error review, the jurisprudence of
both this court and the United States Supreme Court
distinguishing trial from structural error and defining
'substantial rights' has evolved to the point of
sanctioning reversal for trial error only when that
remedy is dictated by an appropriate outcome-specific
Id. at ¶ 17. The court also stated that it was
now "firmly adher[ing]" to the "structural
error/trial error dichotomy." Id. at ¶ 21.
16 In spite of this seemingly unyielding view accepting only
two classes of error, the court also appears to have accepted
a third class of reversible error - trial error that violates
an express legislative mandate. Id. at ¶ 26.
The court concluded its analysis stating that "[f]or
these reasons, we overrule our prior holdings to the contrary
and conclude that reversal of a criminal conviction for other
than structural error, in the absence of express
legislative mandate or an appropriate case specific,
outcome-determinative analysis, can no longer be sustained .
. . ." Id. at ¶ 27 (emphasis added).
17 The error that occurred in this case was the failure to
excuse a juror who did not appear to harbor an actual bias,
but who was disqualified under a statute setting out
categories of jurors deemed to be impliedly biased. §
16-10-103(1)(k), C.R.S. 2017. It is not necessarily the case
that a juror who is disqualified under this subsection as an
employee of a law enforcement agency will favor the
government. See Mulberger v. People, 2016 CO 10,
¶ 12 ("The chief concerns underlying this provision
are 'that one who is employed by a law enforcement agency
will favor, or will be perceived to favor, the prosecution
side of a criminal case, ' and, by analogy, that a
compensated employee of a public defender's office will
favor, or be perceived to favor, the defendant.")
(citations omitted). A statute may set the implied bias bar
above, equal to, or below what due process requires. The
statute at issue appears to go further than due process would
require. In other words, the statute does not require a
showing of actual bias that would violate due process.
18 The difficulty with the view expressed in the special
concurrence - that a violation of section 16-10-103(1)(k)
violates due process - is that this would mean that the
General Assembly could not repeal that statutory subsection
without violating a defendant's right to due process. Or
alternatively, if the statute were to be repealed, a
challenge for cause to a prospective juror who was a
compensated employee of a law enforcement agency must
necessarily be sustained as a matter of due process, even
without a showing of actual bias. This result does not appear
to comport with United States Supreme Court authority.
See United States v. Wood, 299 U.S. 123, 137 (1936)
(an absolute disqualification of governmental employees to
serve as jurors in criminal cases cannot be treated as
embedded in the Sixth Amendment).
19 Defendant argues that a sitting juror's implied bias
satisfies the outcome-determinative test because under the
statute "bias is conclusively presumed as a matter of
law, " which violates the right to an impartial jury. We
need not decide, however, whether a sitting juror who is
impliedly biased, but not actually biased, satisfies the
Novotny outcome-determinative test, because, in my
view, allowing such a juror to serve over objection violates
an express legislative mandate. In reaching this conclusion,
it is necessary to first address why a violation of section
16-10-103(1)(k) qualifies as a violation of an express
legislative mandate, while the impairment of a
defendant's substantial statutory right to a specific
number of peremptory challenges under section 16-10-103(3)
20 In acknowledging the express legislative mandate
exception, the supreme court used violation of a statutory
right to speedy trial as an example. Novotny, ¶
26 (citing Zedner v. United States, 547 U.S. 489,
507 (2006)). Although a defendant might not suffer
outcome-determinative prejudice from a violation of his
statutory speedy trial right, the statute mandates that
charges be dismissed. § 18-1-405(1), C.R.S. 2017.
21 Both the special concurrence and dissent reject the
express legislative mandate, and note that the speedy trial
statute, which the supreme court used as an example,
expressly provides for the remedy of dismissal. Examining
section 18-1-405 as a whole, however, it appears that the
sanction of dismissal was specified to clarify that simple
release from custody was not an adequate sanction when the
speedy trial deadlines were violated. See State in
Interest of L.D., 139 So.3d 679, 685 (La. Ct. App. 2014)
(noting that statute governing timely juvenile adjudication
did not clearly provide a remedy because it did not specify
either release from custody or dismissal of the
petition). Section 18-1-405 provides in pertinent
part, as follows:
[I]f a defendant is not brought to trial on the issues raised
by the complaint, information, or indictment within six
months from the date of the entry of a plea of not guilty, he
shall be discharged from custody if he has not been
admitted to bail, and, whether in custody or on bail, the
pending charges shall be dismissed . . . .
§ 18-1-405(1) (emphasis added).
22 It does not appear that any Colorado statute provides for
a specific remedy of "dismissal on appeal."
Moreover, prior to Novotny, the remedy for the
failure to excuse an impliedly biased juror was automatic
reversal. See Macrander, 828 P.2d at 246. Therefore,
there would have been no reason to specify this remedy in
section 16-10-103. Thus, the absence of a specific remedy in
the statute's language should not be determinative.
23 Here, although section 16-10-103 does not require
dismissal of charges, the statute mandates that a challenge
for cause based on specified grounds "shall" be
granted. § 16-10-103(1). See People v. Rhodus,
870 P.2d 470, 474 (Colo. 1994) (noting that challenges for
cause under section 16-10-103 are
"mandatory"). In contrast, the error addressed in the
Novotny line of cases was not a direct violation of
a statutory mandate. Rather, "the effect" of an
erroneous denial of a challenge for cause resulted in an
adverse impact on the defendant's ability to shape the
jury through peremptory challenges. Novotny, ¶
24 That said, not every violation of a statute constitutes
the violation of an express legislative mandate that would
require reversal in the absence of outcome-determinative
prejudice. See People in Interest of Clinton, 762
P.2d 1381, 1389-99 (Colo. 1988) (non-jurisdictional statutory
violation does not constitute reversible error unless the
violation is of an "essential condition" of a
statute so as to undermine confidence in the fairness of the
proceedings). Certainly construing all statutory violations
as reversible error per se would result in many new trials
for mere technical error. In this case, however, violation of
the clear mandate of section 16-10-103(1) should be
considered reversible error under Novotny.
25 As the United States Supreme Court has recognized, the
violation of a statutory right can be deemed reversible error
per se as a matter of state law. See Rivera v.
Illinois, 556 U.S. 148, 161-62 (2009) (absent a federal
constitutional violation, states retain the prerogative to
decide whether errors require automatic reversal or rank as
harmless under state law). The General Assembly was not
constitutionally required to adopt a challenge for cause
requirement for compensated employees of law enforcement
agencies, but it chose to do so. Requiring a showing of
actual bias rather than automatic reversal would thwart the
purpose of section 16-10-103. Because section 16-10-103(1)(j)
already provides for challenges for cause to biased jurors,
the Attorney General's analysis would in effect compress
the other implied bias subsections into subsection (j). The
General Assembly adopted the implied bias provisions of
section 16-10-103 to operate apart from a prospective
juror's actual bias. Rhodus, 870 P.2d at 473
("In order to maintain the appearance of impartiality in
our justice system, the General Assembly and the courts have
delineated circumstances in which bias is implied by
26 Thus, requiring reversal where an impliedly biased juror
has sat on a jury, even in the absence of actual bias,
satisfies the intent and important purpose of the statute. We
conclude that the violation of section 16-10-103(1)(k) is
27 Finally, we address and reject the Attorney General's
waiver argument. Specifically, the Attorney General points to
the trial court's statement that Juror J "certainly
is not a police officer or anything remotely like that, and I
just don't think without further authority one way or the
other that I can find the Division of Criminal Justice is the
kind of law enforcement agency that's contemplated by the
statute." On this basis, the Attorney General asserts
that "[t]he defendant never followed up with this and
did not provide [the] trial court with the statutes
supporting his challenge for cause." This assertion
misses the mark in three ways.
28 First, counsel's voir dire established that Juror J
worked for the Colorado Division of Criminal Justice, within
the Department of Public Safety, which also includes the
Colorado State Patrol and the Colorado Bureau of
29 Second, counsel challenged Juror J as being a compensated
employee of a law enforcement agency and that is how the
trial court understood the challenge. See Berra v.
Springer & Steinberg, P.C., 251 P.3d 567, 570
(Colo.App. 2010) ("[T]o preserve the issue for appeal
all that was needed was that the issue be brought to the
attention of the trial court and that the court be given an
opportunity to rule on it.").
30 Third, "the trial court is presumed to know and
follow the law." People v. Gibbons, 397 P.3d
1100, 1107 (Colo.App. 2011) (quoting State v.
Ramirez, 871 P.2d 237, 249 (Ariz. 1994)),
aff'd, 2014 CO 67.
31 Therefore, defense counsel's failure to provide the
trial court with a citation to section 24-33.5-112(1)(a),
C.R.S. 2017, did not waive his challenge for cause. As
discussed above, absent waiver of the challenge for cause,
reversal is required.
The Trial Court Did Not Abuse Its Discretion by Admitting
Evidence of a 7-Eleven Incident Three Days Before the Charged
Offenses as Res Gestae
32 Although we reverse for a new trial, we address
defendant's contention that evidence of an incident at a
7-Eleven store should not have been admitted as res gestae
since that issue is likely to recur on retrial.
33 The prosecution moved in limine to introduce, as res
gestae, evidence of an incident that had occurred at a
7-Eleven store three days before the charged offenses.
According to the prosecution, "the evidence will show
that [defendant] became very angry and abuse [sic] following
[the decedent's friend] leaving him at the [store]."
34 In a written order, the trial court ruled that
evidence of the events at the convenience store on August 20
is necessary to provide the fact finder with a full and
complete understanding of the events surrounding the crime
and the context in which the charged crime occurred. The
events at the convenience store are accordingly admissible as
res gestae of the events which occurred four days later at
[the friend's] apartment.
the court explained that the prosecution's evidence
may include only evidence concerning the interaction of
defendant and [the friend] at the store, and the
clerk's observations of defendant's emotional state
following [the friend's] departure. Evidence
concerning defendant's shoplifting activity at the store,
defendant's threats to the clerk following [the
woman's] departure, and the fact that the clerk called
for police assistance is not within the res gestae of the
charged offenses and is not admissible under that theory.
35 Consistent with this order, the jurors heard evidence
about defendant's emotional state after the friend left
him at the 7-Eleven. They also viewed video footage showing
defendant leaving the store and then returning.
36 The Attorney General argues that defendant waived this
issue because counsel "only objected to the very end of
the interaction at 7-Eleven between the clerk and
[defendant], which the trial court ultimately excluded."
Defendant counters that counsel specifically objected to
"evidence about events that occurred after [the friend]
left" and "[t]his is the evidence [he] claims was
improperly admitted." We agree with defendant that he
did not waive our review of this narrow portion of evidence.
37 During argument on the prosecution's motion, defense
counsel conceded the admissibility of evidence that defendant
and the friend "went into the 7-Eleven to get food and
after they had shopped together, she left while [defendant]
is standing there paying for the groceries." But counsel
objected to any evidence of what occurred after the friend
had left and defendant came back inside the store. The trial
court clarified counsel's objection as follows:
So you think that evidence about what happened at the
7-Eleven would be properly admissible but you think it would
stop when [defendant] comes back into the 7-Eleven after [the
friend] has left and the 7-Eleven clerk then observes that
the defendant seems to be upset about what had happened[?]
responded "yes, " and said, "[s]o I actually
object to anything after [the friend] leaves."
Standard of Review and Law
38 We review a trial court's ruling admitting evidence as
res gestae for an abuse of discretion. People v.
Reed, 2013 COA 113, ¶ 31.
39 Res gestae evidence is "generally linked in time and
circumstances with the charged crime, forms an integral and
natural part of an account of a crime, or is necessary to
complete the story of the crime for the jury."
People v. Greenlee, 200 P.3d 363, 368 (Colo. 2009)
(citation omitted). Such evidence "provides the
fact-finder with a full and complete understanding of the
events surrounding the crime and the context in which the
charged crime occurred." People v. Lucas, 992
P.2d 619, 624 (Colo.App. 1999).
40 The procedural requirements of CRE 404(b) do not apply to
res gestae evidence. People v. Miranda, 2014 COA
102, ¶ 50. "[I]n assessing the admissibility of
this evidence on appeal, we must assume the maximum probative
value of the evidence . . . and the minimum prejudice
reasonably to be expected." Id. (citation
omitted) (cert. granted in part Aug. 31, 2015).
41 Defendant argues that the trial court erred in admitting
testimony by the 7-Eleven clerk about defendant's
emotional state after the friend left and permitting the jury
to view surveillance video of defendant leaving the 7-Eleven
and then returning a short time later. According to
defendant, "[n]o connection exists between what happened