People v. Abu-Nantambu-El
| Decision Date | 14 December 2017 |
| Citation | 457 P.3d 648 |
| Docket Number | 14CA1234 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Abdu-Latif Kazembe ABU-NANTAMBU-EL, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
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 by JUDGE BOORAS
¶ 1 We decide in this case whether reversal is required under People v. Novotny , 2014 CO 18, 320 P.3d 1194, 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.
¶ 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.
¶ 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:
¶ 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.
¶ 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) ().
¶ 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, 320 P.3d 1194. 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.
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...
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