People v. Abu-Nantambu-El

Decision Date14 December 2017
Docket NumberCourt of Appeals No. 14CA1234
Citation457 P.3d 648
Parties The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Abdu-Latif Kazembe ABU-NANTAMBU-EL, Defendant-Appellant.
CourtColorado 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


¶ 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.

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?
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?

¶ 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, 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.

¶ 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...

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    ...than a court's awareness of an issue and an opportunity to rule on it sua sponte. The dissent cites a criminal case, People v. Abu-Nantambu-El , 2017 COA 154, 457 P.3d 648, that relies on a civil case, Berra v. Springer & Steinberg, P.C. , 251 P.3d 567, 570 (Colo. App. 2010), for the premis......
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