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People v. Abu-Nantambu-El

Court of Appeals of Colorado, Third Division

December 14, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Abdu-Latif Kazembe Abu-Nantambu-El, Defendant-Appellant.

         Jefferson County District Court No. 12CR2275 Honorable Dennis J. Hall, Judge

          Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Johnson, Brennan & Klein, PLLC, Gail K. Johnson, Boulder, Colorado, for Defendant-Appellant.

          OPINION

          BOORAS JUDGE.

         ¶ 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 trial.

         ¶ 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.

         I. Background

         ¶ 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 apartment.

         ¶ 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.

         II. Reversal is Necessary Because the Trial Court Erred in Denying Defendant's Challenge for Cause to Juror J

         A. Additional Background

         ¶ 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 law enforcement.

         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 projects.
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 yourself directly?
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.

         B. 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 agree.

         ¶ 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.[1] 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 standard).

         ¶ 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 analysis.

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).

         C. Analysis

         ¶ 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) does not.

         ¶ 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).[2] 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.[3] 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").[4] 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, ¶ 14.

         ¶ 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 law.").

         ¶ 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 reversible error.

         D. Waiver

         ¶ 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 Investigation.

         ¶ 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.

         III. 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.

         However, 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.

(Emphasis added.)

         ¶ 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.

         A. Preservation

         ¶ 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[?]

         Counsel responded "yes, " and said, "[s]o I actually object to anything after [the friend] leaves."

         B. 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).

         C. Analysis

         ¶ 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 after ...


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