People v. Novotny

• Decision Date: 18 March 2010
• Docket Number: No. 06CA2204.,06CA2204.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Martin NOVOTNY, Defendant–Appellant.
• Court: Colorado Court of Appeals

356 P.3d 829

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Martin NOVOTNY, Defendant–Appellant.

No. 06CA2204.

Colorado Court of Appeals, Div. IV.

March 18, 2010.

Rehearing Denied May 6, 2010.

John W. Suthers, Attorney General, Rebecca A. Adams, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion

Opinion by Judge WEBB.

Defendant, Martin Novotny, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder (after deliberation) and first degree burglary. We reverse and remand for a new trial.

I.

Defendant first contends the trial court committed reversible error by denying his challenge for cause to a prospective juror who was employed as an assistant attorney general. We agree.

Section 16–10–103(1)(k), C.R.S.2009, requires a trial court to sustain a challenge for cause to a prospective juror who is “a compensated employee of a public law enforcement agency.” Accord Crim. P. 24(b)(1)(XII). The court's determination that a prospective juror is not a compensated employee of a public law enforcement agency is subject to de novo review. People v. Sommerfeld, 214 P.3d 570, 572 (Colo.App.2009).

When a trial court erroneously denies a defendant's challenge for cause, reversal is mandatory if the record shows that the defendant used a peremptory challenge to excuse the prospective juror and exhausted his remaining peremptory challenges. Ma v. People, 121 P.3d 205, 212 (Colo.2005).

Here, the court asked the panel of prospective jurors if any of them worked for a law enforcement agency. J.D. responded affirmatively and told the court that he was an assistant in the state attorney general's office with responsibility for representing the Department of Corrections (DOC). He added that he did not consider himself to be a sworn law enforcement agent.

Defendant challenged J.D. for cause because he was employed by a law enforcement agency. The court denied the challenge, explaining that J.D. was not subject to disqualification under section 16–10–103(1)(k) because “the Attorney General does a whole bunch of things besides law enforcement” and “this guy works in an area that's not law enforcement.” Defendant used a peremptory challenge to remove J.D. and exhausted his remaining peremptory challenges.

We conclude that the trial court erred by focusing on whether J.D.'s work as an attorney for the DOC made him a compensated employee of a “law enforcement agency” for purposes of section 16–10–103(1)(k). A prospective juror's “particular responsibilities are not relevant for purposes of applying section 16–10–103(1)(k) and Crim. P. 24(b)(1)(XII).” Sommerfeld, 214 P.3d at 573 ; see People v. Coleman, 844 P.2d 1215, 1218 (Colo.App.1992) ( section 16–10–103(1)(k) applies to “any employee under the control of a law enforcement agency, irrespective of his or her job duties, so long as he or she was under the control of such agency”). The rationale for this bright line rule is a “concern ... 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.” Ma, 121 P.3d at 210 ; see also People v. Speer, 216 P.3d 18, 26 (Colo.App.2007) (cert. granted Dec. 15, 2008) (employees of law enforcement agencies are subject to challenge for cause because a perception of partiality flows from the fact that their “livelihoods depend on law enforcement agencies”).

Therefore, even though the DOC constitutes a “law enforcement agency” under 16–10–103(1)(k), see People v. Scott, 41 Colo.App. 66, 68, 583 P.2d 939, 941 (1978), this appeal can be resolved solely by analyzing the law enforcement responsibilities of J.D.'s actual employer: the office of the state attorney general.¹

In Ma, 121 P.3d at 212, the supreme court held that the Army Military Police Corps constitutes a “law enforcement agency” under 16–10–103(1)(k). The court began its analysis by observing that the phrase “law enforcement agency” is not defined in any of the statutes that govern jury selection and composition. The court then examined the common understanding of the phrase “law enforcement” and narrowly construed it as being limited to “the enforcement of criminal laws.” Id. at 210–11. It explained that such a narrow construction, which excluded the enforcement of civil regulations, would “keep the pool of dismissible jurors to an appropriate size” and also achieve “the General Assembly's goal of maintaining actual and apparent jury impartiality.” Id. at 211.

Of particular significance here, the court in Ma also considered how the term “law enforcement agency” is used in various Colorado's statutes:

In addition to reflecting the phrase's common definition and the General Assembly's intent, our construction of the phrase “law enforcement” finds support throughout Colorado statutory ... law. The statutes that define the term “law enforcement agency” also identify several types of law enforcement agencies, including: any police department, sheriff's department, or district attorney's office; the office of the state attorney general; the Colorado bureau of investigations; and the Colorado state patrol. §§ 8–47–203.3(2), 8–72–111(2), 24–50–127(2)(b), 26–1–114(3)(a)(III)(B), C.R.S. (2005) (statutes about state employee benefits and protections); § 42–5–201(6), C.R.S. (2005) (a statute about traffic regulations). Notably, each of these agencies enforces criminal laws, thus reinforcing the notion that the phrase “law enforcement” does not imply the enforcement of civil regulations.

Ma, 121 P.3d at 211 (emphasis added).

The court also observed that several divisions of this court have “implicitly construed the phrase ‘law enforcement,’ contained in section 16–10–103(1)(k), to connote only the enforcement of criminal laws,” before summarizing its holding as follows:

Combining the common meanings of the phrase “law enforcement” and the word “agency,” we reason that the term “law enforcement agency” means a division of government that detects and punishes criminal violations of the law by performing police-like duties such as investigating crimes and arresting, prosecuting, or detaining suspected criminals. Put in a less cumbersome way, a law enforcement agency is a police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals.

Id.

The first statutory definition cited by the court in Ma appears in a section which specifies that the state division of workers' compensation in the Department of Labor and Employment shall provide information concerning the location of any person whose name appears in the division's records, and who is the subject of an outstanding felony arrest warrant, to “law enforcement agencies.” § 8–47–203.3(1), C.R.S.2009. For purposes of this section, “ ‘[l]aw enforcement agency’ includes ... the office of the state attorney general.” § 8–47–203.3(2), C.R.S.2009. This same definition appears in the three similar provisions cited by the court in Ma. See § 8–72–111(2), C.R.S.2009 (the attorney general is a “law enforcement agency” entitled to receive information about the whereabouts of an individual who is the subject of an outstanding arrest warrant from the division of employment and training); § 24–50–127(2)(b), C.R.S.2009 (using the same definition with respect to wanted individuals whose whereabouts are known to the state personnel director); § 26–1–114(3)(a)(III)(B), C.R.S.2009 (using the same definition with respect to wanted individuals who receive public assistance, and whose whereabouts are known to the Department of Human Services).² These statutory definitions classifying the office of the state attorney general as a “law enforcement agency” weigh heavily in favor of a similar classification for purposes of section 16–10–103(1)(k).

But an even more compelling reason for making a like classification is that, in certain circumstances, the attorney general is vested with the type of prosecutorial and investigatory powers which the court in Ma identified as being central to its definition of a “law enforcement agency.” For example, the attorney general must “appear for the state and prosecute ... all actions and proceedings, civil and criminal, when the state is a party or is interested when required to do so by the governor.” § 24–31–101(1)(a), C.R.S.2009; see, e.g., People on Info. of Witcher v. Dist. Court, 190 Colo. 483, 485, 549 P.2d 778, 780 (1976) (when prosecuting a case at the request of the governor, the attorney general has the right to assume prosecutorial responsibilities and duties); see also § 6–4–117, C.R.S.2009 (attorney general prosecutes criminal antitrust violations); §§ 11–51–603, 603.5, C.R.S.2009 (attorney general may prosecute criminal securities act violations); §§ 12–25–305(1), 24–31–101(1)(f), C.R.S.2009 (giving the attorney general concurrent original jurisdiction to prosecute the criminal offense of practicing architecture without a license). In addition, the attorney general acts as a criminal investigator when presenting evidence to a statewide grand jury. See § 13–73–106, C.R.S.2009; People ex rel. Tooley v. Dist. Court, 190 Colo. 486, 488–89, 549 P.2d 774, 776 (1976). Further, section 24–31–101(1)(a) requires the attorney general to represent the state in all appeals from criminal convictions, a responsibility that clearly constitutes an important part of the prosecutorial process by virtue of the fact that a conviction challenged on appeal does not become final unless and until the prosecution prevails. See People v. Hampton, 876 P.2d 1236, 1239 (Colo.1994) (“[A] conviction is not final and has no legal force until after appeals have been exhausted.”).

Therefore, we conclude that the office of the state attorney general is a “law enforcement agency” for purposes of section 16–10–103(1)(...