People v. Abu-Nantambu-El

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          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 14CA1234

         Attorneys for Petitioner: Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado

         Attorneys for Respondent: Johnson & Klein, PLLC, Gail K. Johnson, Hillary C. Aizenman, Boulder, Colorado

         OPINION

         MÁ RQUEZ, JUSTICE

         [¶1] This case presents a question left unanswered by our holding in People v. Novotny, 2014 CO 18, 320 P.3d 1194: What standard of reversal applies where a trial court erroneously denies a challenge for cause, the defendant exhausts his peremptory challenges, and the challenged juror ultimately serves on the jury? More specifically, should reversal be automatic if the challenged juror should have been excused because she was impliedly biased as a matter of law, even if she did not evince actual enmity toward the defendant?

         [¶2] It is clear that the erroneous denial of a challenge for cause amounts to structural error if it results in an actually biased juror serving on a jury. Consistent with that principle, we conclude that the erroneous seating of an impliedly biased juror is also structural error and requires reversal. In other words, for purposes of a criminal defendant’s constitutional right to an impartial jury, a juror who is presumed by law to be biased is legally indistinguishable from an actually biased juror. Here, the trial court erroneously denied a for-cause challenge to a juror who was presumed by law to be biased under section 16-10-103(1)(k), C.R.S. (2019) (requiring the court to sustain a challenge to a potential juror who is "a compensated employee of a public law enforcement agency or a public defender’s office"). The defendant exhausted his peremptory challenges, and the impliedly biased juror served on the defendant’s jury. We conclude that such an error is not amenable to analysis under a harmless error standard, regardless of the juror’s actual bias, and the defendant’s convictions must be reversed. Accordingly, we affirm the judgment of the court of appeals.

          I. Background

          A. Facts

         [¶3] Abdu-Latif Kazembe Abu-Nantambu-El forced his way into the apartment of an

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acquaintance, where he fatally stabbed a visitor and forced the acquaintance to clean up evidence of the crime. The prosecution subsequently charged Abu-Nantambu-El with numerous offenses, including first degree murder (after deliberation), first degree murder (felony murder), second degree murder, and two counts of first degree burglary. Abu-Nantambu-El proceeded to trial on a self-defense theory.

          B. Jury Selection and Trial

         [¶4] During jury selection, Juror J, a financial grant manager for the State of Colorado, said that she worked for the Colorado Division of Criminal Justice^[1] but described the connection between her duties and law enforcement as, at most, tenuous:

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 [Colorado Bureau of Investigation] 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.

         [¶5] When defense counsel asked about potential bias, Juror J indicated that she generally was not in contact with law enforcement personnel:

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.

...

DEFENSE COUNSEL: Do you deal with the law enforcement agencies yourself directly?

JUROR J: [I deal with their] [f]inance people.

         [¶6] Section 16-10-103(1) lists the grounds on which a trial court "shall" sustain a challenge to a potential juror for cause. Abu-Nantambu-El challenged Juror J under section 16-10-103(1)(k), which requires the court to sustain a challenge to a potential juror who is a "compensated employee of a public law enforcement agency or a public defender’s office." The prosecution disputed the challenge, and the trial court denied it, reasoning that the Colorado Division of Criminal Justice is a multidisciplinary agency and Juror J’s job duties as a financial grant manager were unrelated to law enforcement.

         [¶7] Abu-Nantambu-El subsequently exhausted his peremptory challenges but did not excuse Juror J, who ultimately served on the jury. Among other counts, the jury convicted Abu-Nantambu-El of first degree murder (felony murder), second degree murder, and two counts of first degree burglary.^[2] The court sentenced him to life imprisonment without the possibility of parole.^[3]

          C. Court of Appeals Decision

         [¶8] Abu-Nantambu-El appealed, arguing, as relevant here, that his constitutional right to a fair and impartial jury was violated because his jury included Juror J, who should have been excused for cause under section 16-10-103(1)(k). He contended that the error was structural. The People conceded that the trial court erred in denying the challenge for cause but argued that the proper standard of reversal was an outcome-determinative harmless error standard and that Abu-Nantambu-El’s claim failed because Juror J did not evince any actual bias. Thus, the dispute

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on appeal was the proper standard of reversal.

         [¶9] A divided panel of the court of appeals reversed Abu-Nantambu-El’s convictions and remanded for a new trial, concluding that reversal is required where, as here, the trial court erroneously denies a challenge for cause under section 16-10-103(1)(k), the defendant exhausts his or her peremptory challenges, and the impliedly biased juror serves on the jury. People v. Abu-Nantambu-El, 2017 COA 154, ¶ 3, __ P.3d __. However, each judge wrote separately.

         [¶10] In Judge Booras’s view, reversal was required because the trial court’s ruling was an error in violation of an express legislative mandate in section 16-10-103(1)(k) (stating that a challenge for cause "shall" be granted). Id. at ¶¶ 19, 23.

         [¶11] Judge Freyre agreed that Abu-Nantambu-El’s conviction must be reversed, concluding that the error was structural because it violated Abu-Nantambu-El’s constitutional right to trial by an impartial jury. Id. at ¶¶ 51, 72 (Freyre, J., concurring in part and dissenting in part). Judge Freyre noted that a defendant cannot be tried fairly when a biased juror serves on the jury. Id. at ¶ 55. She further reasoned that there is no basis in section 16-10-103(1)(k) to differentiate between an actually biased juror and an impliedly biased juror. Id. at ¶ 52. Rather, she reasoned, "bias is bias." Id. And because the harm arising from a biased adjudicator "pervades and infects the entire framework of the trial," it constitutes structural error requiring reversal. Id. at ¶ 72.

         [¶12] Judge Webb dissented. He rejected Judge Booras’s express legislative mandate approach because section 16-10-103 is silent on the remedy for the seating of a biased juror. Id. at ¶ 75 (Webb, J., dissenting). He also dismissed Judge Freyre’s structural error approach, concluding that section 16-10-103(1)(k) provides broader protection than constitutional due process requires. Id. at ¶ 98. Because, in his view, the Sixth Amendment protects against the service of an impliedly biased juror "in only the most extreme of situations," id. at ¶ 97 (quoting State v. Robertson, 122 P.3d 895, 900 n.3 (Utah Ct.App. 2005)), the error did not violate Abu-Nantambu-El’s constitutional rights and accordingly was not structural, id. at ¶ 132. Instead, Judge Webb agreed with the People that the seating of an impliedly biased juror should be evaluated under an outcome-determinative analysis— specifically, ordinary harmless error. Id. at ¶¶ 95, 132. In reaching this conclusion, he expressed concern that requiring reversal would encourage defendants to test their luck with a jury by not exercising a peremptory strike as to a challenged juror, knowing that the conviction would be reversed on appeal if a reviewing court determined that the challenge for cause should have been granted. Id. at ¶ 108.

         [¶13] We granted the People’s petition for a writ of certiorari to review ...