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                                                  ADVANCE SHEET HEADNOTE
                                                            December 23, 2019

                                    2019 CO 106

No. 18SC44, People v. Abu-Nantambu-El—Criminal Law—Jury—Structural
Error.

      The supreme court affirms the judgment of the court of appeals reversing

the defendant’s convictions where the trial court erroneously denied the

defendant’s for-cause challenge to a juror under section 16-10-103(1)(k), C.R.S.

(2019), the defendant exhausted his peremptory challenges, and the challenged

juror ultimately served on the jury.       Consistent with the principle that the

erroneous denial of a challenge for cause amounts to structural error if it results in

an actually biased juror serving on the jury, the supreme court holds that the

erroneous seating of an impliedly biased juror is also structural error. 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.
                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203

                                    2019 CO 106

                         Supreme Court Case No. 18SC44
                      Certiorari to the Colorado Court of Appeals
                       Court of Appeals Case No. 14CA1234

                                     Petitioner:

                       The People of the State of Colorado,

                                          v.

                                    Respondent:

                     Abdu-Latif Kazembe Abu-Nantambu-El.

                                Judgment Affirmed
                                     en banc
                                 December 23, 2019


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
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
JUSTICE SAMOUR dissents.
JUSTICE BOATRIGHT does not participate.

                                   2
¶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

                                           3
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 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




1Section 24-33.5-112(1)(a), C.R.S. (2019), identifies the Colorado Division of
Criminal Justice as a “law enforcement agency of the state.”

                                        4
      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.


                                         5
¶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 on appeal was the proper standard of reversal.




2 The jury also convicted Abu-Nantambu-El of third degree assault (recklessly
causing injury), second degree kidnapping, tampering with physical evidence,
and false imprisonment.
3 The jury found various sentence enhancers and habitual criminal counts. Abu-
Nantambu-El received consecutive sentences of life imprisonment without the
possibility of parole for murder, twenty-four years for kidnapping, and six years
for tampering with physical evidence. He also received a two-year sentence for
third degree assault to run concurrently with his other sentences.

                                        6
¶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.

                                           7
¶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.




                                         8
¶13     We granted the People’s petition for a writ of certiorari to review the court

of appeals’ decision.4

                                II. Legal Principles

¶14     A fair and impartial jury is a key element of a defendant’s constitutional

right to a fair trial under both the United States and Colorado Constitutions. U.S.

Const. amends. V, VI, XIV; Colo. Const. art. II §§ 16, 25; see also Vigil v. People,

2019 CO 105, ¶ 9, __ P.3d __; People v. Russo, 713 P.2d 356, 360 (Colo. 1986).

Accordingly, seating a biased juror violates the defendant’s constitutional rights.

See Nailor v. People, 612 P.2d 79, 80 (Colo. 1980).

¶15     Our recent opinion in Vigil addressed some of the questions left open after

Novotny regarding jury selection and the use of peremptory challenges. There, we

noted that, within constitutional limits, the General Assembly determines who is

competent and qualified for jury service. Vigil, ¶ 9; see also People v. White, 242 P.3d

1121, 1124 (Colo. 2010). For instance, under the Uniform Jury Selection and Service




4   We granted certiorari to review the following issues:
        1. Whether a violation of section 16-10-103(1)(k), C.R.S. (2018), which
           does not expressly provide for dismissal as a remedy, qualifies as
           a violation of an express legislative mandate.
        2. Whether the Sixth Amendment applies to violations of section
           16-10-103(1)(k), C.R.S. (2018), which provides greater protection
           than that required by federal due process.

                                           9
Act, §§ 13-71-101 to -145, C.R.S. (2019) (“UJSSA”), jurors must be U.S. citizens and,

at the time of service, residents of the county in which they are called to serve.

§ 13-71-105(1), C.R.S. (2019). Further, prospective jurors “shall be disqualified” if

they are under the age of eighteen; unable to read, speak, or understand English;

or unable to render jury service because of a mental or physical disability.

§ 13-71-105(2)(a)–(c).    Additionally, “prospective grand juror[s] shall be

disqualified if [they] ha[ve] previously been convicted of a felony . . . .”

§ 13-71-105(3).   Courts must “strictly enforce the provisions” of the UJSSA.

§ 13-71-104(4), C.R.S. (2019).

¶16   The legislature also requires a trial court, upon a party’s challenge, to

remove jurors when particular circumstances implicate their ability to remain

impartial. Vigil, ¶ 11. First, section 16-10-103(1)(j) requires a trial court to excuse

jurors who are actually biased. Specifically, a trial court must grant a challenge

for cause to a prospective juror who “evinc[es] enmity or bias toward the

defendant or the state,” unless the court is “satisfied” that the prospective juror

“will render an impartial verdict according to the law and the evidence submitted

to the jury at the trial.” § 16-10-103(1)(j); Vigil, ¶ 11; see also Morgan v. People,

624 P.2d 1331, 1332 (Colo. 1981) (concluding that a juror was actually biased where

he indicated he would have “difficulty applying the principle[] that the burden of

proof rests solely upon the prosecution to establish the guilt of the accused”).

                                          10
¶17    Second, and relevant here, the legislature has determined that prospective

jurors with certain relationships are impliedly biased and must be excused upon

challenge. This category includes prospective jurors who:

       • have “[r]elationships within the third degree, by blood, adoption, or
         marriage, to a defendant or to any attorney of record or attorney
         engaged in the trial of the case”;

       • stand “in the relationship of guardian and ward, employer and
         employee, landlord and tenant, debtor and creditor, or principal and
         agent to, or being a member of the household of, or a partner in
         business with, or surety on any bond or obligation for any defendant”;

       • have “been a party adverse to the defendant in a civil action or ha[ve]
         complained against or been accused by him in a criminal prosecution”;

       • have “served on the grand jury which returned the indictment, or on a
         coroner’s jury which inquired into the death of a person whose death is
         the subject of the indictment or information, or on any other
         investigatory body which inquired into the facts of the crime charged”;

       • were “juror[s] at a former trial arising out of the same factual situation
         or involving the same defendant”;

       • were “juror[s] in a civil action against the defendant arising out of the
         act charged as a crime”;

       • were “witness[es] to any matter related to the crime or its prosecution”;

       • “occup[y] a fiduciary relationship to the defendant or a person alleged
         to have been injured by the crime or the person on whose complaint the
         prosecution was instituted”; or

       • are “compensated employee[s] of a public law enforcement agency or a
         public defender’s office.”

§ 16-10-103(1)(b)–(i), (k); see also Crim. P. 24(b)(1)(II)–(XII).


                                            11
¶18   In addition to challenges for cause, the legislature has provided for

peremptory challenges, which allow “both the prosecution and the defense to

secure a more fair and impartial jury by enabling them to remove jurors whom

they perceive as biased.” Vigil, ¶ 19 (quoting People v. Lefebre, 5 P.3d 295, 303 (Colo.

2000), overruled on other grounds by Novotny, ¶ 27, 320 P.3d at 1203)); see also Ross v.

Oklahoma, 487 U.S. 81, 88 (1988). Section 16-10-104, C.R.S. (2019), permits each

party to exercise a certain number of peremptory challenges, depending on the

circumstances of the case and nature of the charge. “The statute directs that such

peremptory challenges are to be exercised ‘as provided by applicable rule of

criminal procedure.’” Vigil, ¶ 12 (quoting § 16-10-104(2)). Rule 24(d) of the

Colorado Rules of Criminal Procedure provides the mechanics and timing for

exercising peremptory challenges and permits the trial court to add peremptory

challenges to either side, or to both sides, for good cause shown.

¶19   Within constitutional limits,5 a party may use a peremptory challenge to

remove a prospective juror without specifying a reason or for no reason at all.

Novotny, ¶ 10, 320 P.3d at 1198. “[A] principle reason for permitting peremptory




5A party may not, for example, exercise a peremptory challenge to remove a juror
because of race or gender. Batson v. Kentucky, 476 U.S. 79, 89 (1986) (race); J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 146 (1994) (gender).

                                          12
challenges has always been to help secure the constitutional guarantee of trial by

an impartial jury.” Vigil, ¶ 16. But although peremptory challenges allow litigants

to assist the court in the selection of a constitutionally required fair and impartial

jury, the U.S. Supreme Court has made clear that “exercising the authorized

number of peremptory challenges is all that the parties are entitled to by the rule,”

id. at ¶¶ 16, 18–19 (citing United States v. Martinez-Salazar, 528 U.S. 304, 314–16

(2000)), and that “the mistaken denial of a state-provided peremptory challenge

does not, without more, violate the federal constitution,” id. at ¶ 16 (citing Rivera v.

Illinois, 556 U.S. 148, 158 (2009)).

¶20    That is, where a defendant is compelled to use a peremptory challenge to

correct a trial court’s erroneous failure to dismiss a juror for cause, so long as the

defendant receives both an impartial jury and the number of peremptory

challenges specified by state statute, the defendant’s constitutional rights remain

unaffected. See id.

¶21    Such was the case in Novotny. There, the trial court erroneously denied the

defendant’s challenge for cause under section 16-10-103(1)(k) to a potential juror

who worked as an assistant attorney general.           The defendant subsequently

exercised a peremptory challenge to excuse the juror. Novotny, ¶ 1, 320 P.3d at

1196. We identified three potential standards of reversal: (1) structural error

requiring automatic reversal; (2) error requiring reversal for violation of an express

                                          13
legislative mandate; and (3) trial error requiring reversal under an outcome-

determinative analysis only if the error was not harmless. Id. at ¶ 27, 320 P.3d at

1203.

¶22     In Novotny, we focused on the jurisprudential developments in the

understanding of trial error and structural error that followed our 1992 decision in

People v. Macrander, 828 P.2d 234 (Colo. 1992), which held that reversal is automatic

where a trial court erroneously denies a challenge for cause, 828 P.2d at 243. We

noted that the distinction between “trial error, which can be harmless, and

structural error, which cannot, was . . . in its infancy” when we decided Macrander.

Novotny, ¶ 18, 320 P.3d at 1200.        But in the decades that followed, the

understanding of harmless error and structural error “developed so as to

substantially erode the premises upon which [Macrander] rest[ed].” Id. at ¶ 17,

320 P.3d at 1200. In that time, the Supreme Court confined structural error to a

“limited class of fundamental constitutional error[s] [that] could ‘defy analysis by

“harmless error” standards.’” Id. at ¶ 20, 320 P.3d at 1201 (quoting Neder v. United

States, 527 U.S. 1, 7 (1999)). We also observed that the Supreme Court had rejected

the notion that peremptory challenges are of constitutional dimension. Id. at ¶ 22,

320 P.3d at 1201 (citing Ross, 487 U.S. at 88).     We therefore reasoned that a

defendant does not suffer constitutional harm merely by being deprived of a

statutorily granted peremptory challenge as a result of a court’s good-faith error.

                                         14
Id. at ¶ 23, 320 P.3d at 1202. Rather, in light of legal developments after Macrander,

we held that error that results in no more than the loss of a statutorily granted

peremptory challenge is not structural error. Id. In so holding, we overruled our

earlier decision in Macrander. Id. at ¶ 27, 320 P.3d at 1203. Notably, while we did

“not imply . . . that every violation of our statutes and rules prescribing the use of

peremptory challenges must be disregarded as harmless,” we held that a

reviewing court should apply “the proper outcome-determinative test” when

analyzing an error that merely deprived the defendant of a peremptory challenge,

“as distinguished from an actual Sixth Amendment violation.” Id. at ¶¶ 23, 27,

320 P.3d at 1202–03.

                                   III. Analysis

¶23   Our decision in Novotny left open the question of what standard of reversal

applies when a trial court erroneously denies a challenge for cause and the

impliedly biased juror ultimately serves on the jury. That is the situation before

us now.

¶24   We first conclude that a violation of section 16-10-103(1)(k) does not require

reversal under an express legislative mandate. In Novotny, we gave two examples

of express legislative mandates requiring reversal. ¶ 26, 320 P.3d at 1203. The first

was Zedner v. United States, 547 U.S. 489, 507 (2006). There, the Supreme Court

declined to apply harmless error analysis to a violation of a federal speedy trial


                                         15
statute, which mandated that “[w]hen a trial is not commenced within the

prescribed period of time, ‘the information or indictment shall be dismissed on

motion of the defendant.’” Id. at 508 (quoting 18 U.S.C. § 3162(a)(2) (2000)). The

Court reasoned that to excuse the error as harmless “would be inconsistent with

the strategy embodied” in the statute. Id. at 509. The second example we pointed

to was Colorado’s speedy trial statute, section 18-1-405(1), C.R.S. (2019). Like the

federal statute at issue in Zedner, section 18-1-405(1) states that

      [e]xcept as otherwise provided in this section, if a defendant is not
      brought to trial on the issues raised by the complaint . . . within six
      months from the date of the entry of a plea of not guilty, he shall be
      discharged from custody . . . , the pending charges shall be dismissed,
      and the defendant shall not again be indicted, informed against, or
      committed for the same offense . . . .

(Emphases added.)

¶25   Section 16-10-103(1)(k), by contrast, is silent on the remedy for a violation.

Absent any indication that the statute dictates a particular remedy, we cannot

conclude that a violation of section 16-10-103(1)(k) is a violation of an express

legislative mandate.

¶26   But that still leaves the question of whether a violation of section

16-10-103(1)(k) implicates the Sixth Amendment.

¶27   Certain constitutional rights are so basic to a fair trial that their violation can

never be harmless. Gray v. Mississippi, 481 U.S. 648, 668 (1987). Among these is a



                                          16
defendant’s Sixth Amendment right to “an impartial adjudicator, be it judge or

jury.” Id.

¶28   Accordingly, the Supreme Court has held that when an actually biased juror

sits on the jury, the resulting violation of the defendant’s constitutional right to an

impartial jury requires reversal. Martinez-Salazar, 528 U.S. at 316 (“Nor did the

District Court’s ruling result in the seating of any juror who should have been

dismissed for cause. As we have recognized, that circumstance would require

reversal.”); cf. Ross, 487 U.S. at 85 (“Had [the biased juror] sat on the jury that

ultimately sentenced petitioner to death, and had petitioner properly preserved

his right to challenge the trial court’s failure to remove [the juror] for cause, the

sentence would have to be overturned.”).

¶29   Our own decisions have likewise established that “if the jury included a

biased juror, then the defendant’s right to a fair trial was violated and his

convictions must therefore be reversed.” Morrison v. People, 19 P.3d 668, 670 (Colo.

2000) (analyzing whether the juror in question was actually biased under section

16-10-103(1)(j)).

¶30   As Judge Freyre observed in her opinion below, the harm arising from a

biased adjudicator “pervades and infects the entire framework of the trial,” such

that it defies analysis by harmless error standards. Abu-Nantambu-El, ¶ 72 (Freyre,

J., concurring in part and dissenting in part). Thus, if a trial court error results in

                                          17
the seating of a juror who is actually biased against the defendant, the defendant’s

right to an impartial jury is violated, the error is structural, and reversal is

required. See Martinez-Salazar, 528 U.S. at 316; Ross, 487 U.S. at 85; Morrison,

19 P.3d at 670.

¶31   The dispute in this case is whether jurors who are presumed by law to be

biased under section 16-10-103(1)(k) are legally distinguishable from jurors who

are actually biased under section 16-10-103(1)(j). We conclude that they are not.

¶32   We see no grounds in the statutory framework for drawing such a line. The

plain language of section 16-10-103(1) makes no distinction between potential

jurors who evince actual bias and those who are conclusively presumed by law to

be biased. Further, to apply harmless error review and require a showing of actual

bias where an impliedly biased juror sits would render section 16-10-103(1)(k)

redundant: Why require a trial court to grant challenges to jurors based on

statutorily implied bias if such jurors must be actually biased? Such jurors would

be disqualified anyway under section 16-10-103(1)(j).

¶33   Rather, the General Assembly has identified certain jurors whose bias is

implied as a matter of law and has required trial courts to excuse such jurors when

a party challenges them for cause. People v. Bonvicini, 2016 CO 11, ¶ 10, 366 P.3d

151, 154–55. Nothing in section 16-10-103(1) suggests that the presumption of bias

for such jurors is rebuttable. In other words, an impliedly biased juror “is not

                                        18
susceptible to rehabilitation through further questioning because implied bias,

once established, cannot be ameliorated by the juror’s assurances that she

nonetheless can be fair.” Lefebre, 5 P.3d at 300.

¶34   Accordingly, by enacting section 16-10-103(1)(k), the General Assembly has

determined that compensated employees of public law enforcement agencies and

public defender’s offices cannot serve as jurors if they are challenged because “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 v. People, 121 P.3d 205, 210 (Colo.

2005), and a “compensated employee of a public defender’s office will favor, or

will be perceived to favor, the defendant,” Mulberger v. People, 2016 CO 10, ¶ 12,

366 P.3d 143, 147.

¶35   In determining that these potential jurors are subject to dismissal for cause,

Colorado has been more protective of a defendant’s right to a jury free of implied

bias than the federal courts or other jurisdictions without a comparable statute.6

We are not free to alter the General Assembly’s legislative judgment about the




6E.g., State v. Benedict, 148 A.3d 1044, 1050–51 (Conn. 2016) (concluding that an
active police officer’s service on a jury, standing alone, did not violate the
defendant’s constitutional rights where the state had no statute or common-law
rule to that effect); see also United States v. Mitchell, 690 F.3d 137, 149–50 (3d Cir.
2012) (declining to categorically impute bias to co-workers of key witnesses where
no controlling authority presumed such bias).

                                          19
types of relationships that carry significant risk of actual bias or the appearance of

bias, nor may we read a distinction into the statute that does not exist. See

Scoggins v. Unigard Ins. Co., 869 P.2d 202, 205 (Colo. 1994) (noting that a court “will

not judicially legislate by reading a statute to accomplish something the plain

language does not suggest”). Unlike those jurisdictions without a comparable

statute, we therefore do not undertake a case-by-case analysis to see whether the

implied bias of a juror necessitates granting a challenge for cause. Cf. State v.

Benedict, 148 A.3d 1044, 1051 (Conn. 2016) (in the absence of a statute or common-

law rule that an impliedly biased juror must be excused, the “circumstances of

[the] particular case” determine whether the juror should be excused because bias

is likely). Rather, jurors who fall under section 16-10-103(1)(k) are conclusively

presumed to be biased as a matter of law.

¶36   We do not suggest that the service of a juror employed by law enforcement

or the public defender’s office necessarily violates a defendant’s Sixth Amendment

right to an impartial jury in the absence of section 16-10-103(1)(k). Nor do we

suggest that the General Assembly could not, should it wish to do so, amend this

provision to narrow its scope or repeal it altogether. However, where the General

Assembly has exercised its legislative authority to determine that certain

relationships render a potential juror impliedly biased as a matter of law, we are

bound by that legislative determination. The result of that determination is that

                                          20
the juror is deemed as a matter of law to be biased, period. Accordingly, a trial

court’s erroneous denial of a challenge for cause to such a juror requires reversal

if that impliedly biased juror sits on a defendant’s jury.

¶37      We are unpersuaded that the remedy of automatic reversal in these

circumstances will encourage gamesmanship by incentivizing defense counsel to

fail to challenge a juror for cause based on implied bias. The plain language of

section 16-10-103(1) requires defense counsel to challenge an allegedly biased juror

to preserve the issue for appellate review; a trial judge is not required to excuse a

prospective juror sua sponte. See People v. Coney, 98 P.3d 930, 934 (Colo. App.

2004).

¶38      As the Supreme Court observed in Martinez-Salazar, “[c]hallenges for cause

and rulings upon them . . . are fast paced, made on the spot and under pressure.”

528 U.S. at 316.       Counsel under these circumstances have little time for

gamesmanship. See id.; cf. Bondsteel v. People, 2019 CO 26, ¶ 28, 439 P.3d 847, 852

(“The assumption that any competent attorney would withhold a meritorious

argument at trial in the hope of having something to argue on appeal if the trial

goes badly belies reality.”). Moreover, nothing prevents the prosecution from




                                         21
using a peremptory challenge to remove a juror who should have been excused

for cause.7

                               IV. Conclusion

¶39   In sum, because 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), the

defendant exhausted his peremptory challenges, and the impliedly biased juror

served on the defendant’s jury, the error is structural, and Abu-Nantambu-El’s

convictions must be reversed. We therefore affirm the judgment of the court of

appeals.

JUSTICE SAMOUR dissents.




7 This case does not present the question of whether Abu-Nantambu-El waived
appellate review of his claim or invited any error. The People do not argue that
any error was invited, nor does the record suggest that defense counsel purposely
failed to use a peremptory challenge to remove Juror J. See People v. Garcia,
2018 COA 180, ¶ 14, 446 P.3d 922, 926. We therefore do not opine on what the
result would be had Abu-Nantambu-El not exhausted his peremptory challenges
or the record suggested that defense counsel invited the error.

                                       22
JUSTICE SAMOUR, dissenting.

¶40   The majority throws out Abu-Nantambu-El’s multiple convictions

(including for first degree murder, assault, and burglary), invalidates his

adjudication as a habitual criminal, and vacates his sentence to life imprisonment

without the possibility of parole. Of course, an appellate court must sometimes

take such actions to address an error in a jury trial. In this case, though, the

majority does so based solely on the trial court’s denial of Abu-Nantambu-El’s

challenge for cause with respect to Juror J, a juror Abu-Nantambu-El subsequently

chose not to excuse with one of his twelve peremptory challenges.              If,

notwithstanding Juror J’s employment as a financial grant manager in the criminal

justice division of the Department of Public Safety, Abu-Nantambu-El decided not

to excuse her, why should we automatically reverse? Because I believe that the

appellate claim was waived or that the error was invited, and because I disagree

with the analytical framework the majority adopts, I cannot join the decision to

automatically reverse. I therefore respectfully dissent.

¶41    In People v. Novotny, 2014 CO 18, 320 P.3d 1194, this court adopted a “case

specific, outcome-determinative analysis,” which requires a defendant to show

prejudice to obtain reversal based on the trial court’s erroneous denial of his

challenge for cause. Id. at ¶¶ 2, 27, 320 P.3d at 1196, 1203. Since Novotny had

exercised a peremptory challenge to excuse the prospective juror the trial court

                                         1
had mistakenly failed to excuse pursuant to his challenge for cause, we concluded

that automatic reversal was not warranted. Id.

¶42   Here,   it   is   undisputed   that       the   trial   court   erred   in   denying

Abu-Nantambu-El’s challenge for cause with respect to Juror J. As the majority

notes, Juror J was a compensated employee of a public law enforcement agency

and was thus impliedly biased as a matter of law.                     Maj. op. ¶ 2.    But

Abu-Nantambu-El avoids Novotny’s fate because, unlike Novotny, he elected not

to use one of his peremptory challenges to excuse the impliedly biased juror as to

whom his challenge for cause was incorrectly denied. In other words, whereas we

refrained from automatically reversing Novotny’s convictions because he excused

the problematic prospective juror with one of his peremptory challenges, the

majority automatically reverses Abu-Nantambu-El’s convictions because he left

the problematic prospective juror on his jury. This feels counterintuitive to me.

¶43   I cannot join my colleagues in the majority because I don’t believe reversal

is justified where, as here, a defendant complains on appeal about an impliedly

biased juror he chose to keep on his jury despite having twelve opportunities to

excuse her. In its analysis, the majority focuses on whether Juror J ended up

serving on the jury and whether Abu-Nantambu-El exhausted his peremptory

challenges on other prospective jurors. I don’t think it’s that simple.




                                            2
¶44   The majority fails to consider one of the two reasons why Juror J served on

this jury. True, had the trial court granted Abu-Nantambu-El’s challenge for cause

as to Juror J, as it should have, then Juror J would not have served. However, there

is a second reason why Juror J served: Abu-Nantambu-El thereafter decided not

to excuse her with one of his twelve peremptory challenges. To my mind, this is a

classic example of waiver or invited error: After arguing that Juror J was biased

and should not be allowed to serve, Abu-Nantambu-El turned around and elected

not to excuse her with one of his twelve peremptory challenges. The doctrine of

waiver precludes appellate review of an intentionally relinquished known right or

privilege. People v. Rediger, 2018 CO 32, ¶¶ 39–40, 416 P.3d 893, 902. The invited

error doctrine prevents a party from complaining on appeal about an error that

the party either invited or injected into the proceedings. People v. Wittrein, 221 P.3d

1076, 1082 (Colo. 2009).

¶45   In his partially dissenting opinion in Novotny, my colleague, Justice Hood,

anticipated the situation we confront today. Novotny, ¶ 31, 320 P.3d at 1204 (Hood,

J., concurring in part and dissenting in part).       Justice Hood concluded that,

following the incorrect denial of a defendant’s challenge for cause, “if the

defendant chooses not to use a peremptory” challenge to excuse the biased juror,

“any error is arguably invited and not reviewable on appeal.” Id. Although

acknowledging that the Supreme Court’s opinion in United States v.

                                          3
Martinez-Salazar, 538 U.S. 304 (2000), contains language suggesting that the

approach taken by defense counsel here may be acceptable, Justice Hood was

quick to stress that “under Colorado law . . . such an approach . . . arguably raises

the specter of invited error, which precludes appellate review of any error the

defendant ‘invited or injected into the case.’” Novotny, ¶ 47, 320 P.3d at 1206–07

(quoting Wittrein, 221 P.3d at 1082) (Hood, J., concurring in part and dissenting in

part).1

¶46       Another colleague, Justice Gabriel, reached a similar conclusion in his

opinion concurring in the judgment in People v. Bonvicini, 2016 CO 11, 366 P.3d 151

(Gabriel, J., concurring in the judgment), which Justice Hood joined. Id. at ¶ 31,

366 P.3d at 159.      There, Justices Gabriel and Hood found unpersuasive the

defendant’s contention that, had he foreseen our decision in Novotny, he would

have left on the jury the biased juror the trial court had refused to excuse for cause.




1 Morrison v. People, 19 P.3d 668 (Colo. 2000), contains dicta similar to that in
Martinez-Salazar. See id. at 670. But, like Justice Hood, I don’t see the invited error
question as settled under Colorado law. Neither, apparently, does Justice Gabriel.
See infra at ¶ 7.


                                          4
Id. They aptly observed that “such a strategy would arguably have failed under

the invited error doctrine.”2 Id.

¶47   Yet, the majority essentially ignores the elephant in the room. It mentions

the waiver and invited error doctrines—almost as an afterthought—in the last

footnote on the very last page of its opinion.        The majority simply says, in

conclusory fashion, that the record before us does not suggest that

Abu-Nantambu-El invited the error or “purposely” left Juror J on the jury. Maj.

op. ¶ 38 n.7. I beg to differ.

¶48   To be sure, the majority’s position is consistent with Abu-Nantambu-El’s

contention during oral argument that he did not use a peremptory challenge on

Juror J because there were other prospective jurors who were more concerning to

him. But the record belies this claim.




2 Justice Scalia likewise suspected that this tactic would be prohibited under
principles of waiver or, more fundamentally, the principle that a party cannot
complain about an error that he, himself, allows. Martinez-Salazar, 528 U.S. at 318
(Scalia, J., concurring in the judgment). In his alternate opinion in Martinez-Salazar,
Justice Scalia pointed out that he “would not find it easy to overturn a conviction
where, to take an extreme example, a defendant had plenty of peremptories left
but chose instead to allow . . . a person to whom he had registered an objection for
cause, and whose presence he believed would nullify any conviction,” to serve on
the jury. Id. at 318–19.

                                          5
¶49   First, Abu-Nantambu-El was allotted twelve peremptory challenges in this

case because he was charged with first degree murder. That’s twice the number

of peremptory challenges defendants are given in most felony trials. Second, only

one of the twelve prospective jurors Abu-Nantambu-El excused with peremptory

challenges had been previously challenged by him for cause. I find it unpersuasive

that each of the remaining eleven prospective jurors was somehow more

concerning to Abu-Nantambu-El than Juror J, even though Abu-Nantambu-El

challenged Juror J, but not any of those eleven, for cause.            And finally,

Abu-Nantambu-El did not ask for an additional peremptory challenge. As the

majority acknowledges, Rule 24(d)(3) of the Colorado Rules of Criminal Procedure

allows the trial court to give additional peremptory challenges to either side, or to

both sides, for good cause shown. Id. at ¶ 18. If, as Abu-Nantambu-El asserts now,

the only reason he did not exercise a peremptory challenge on Juror J is that the

twelve prospective jurors he peremptorily excused were more troublesome than

Juror J, he presumably would have asked the trial court for another peremptory

challenge. At a minimum, he would have attempted to establish good cause to

obtain an additional peremptory challenge pursuant to Rule 24(d)(3).

¶50   This record compels the conclusion that Abu-Nantambu-El waived his

appellate claim or invited the error. Indeed, if this record doesn’t show the

intentional relinquishment of a known right or the invitation of an error, I don’t

                                         6
know what jury selection record will.3              I would therefore hold that

Abu-Nantambu-El is precluded from obtaining relief on appeal.4

¶51   Surprisingly, the majority declares that it is not worried that today’s

decision will lead to “gamesmanship.” Id. at ¶¶ 36–37. But that strikes me as little

more than whistling past the graveyard. The majority should be worried about

gamesmanship given the system it sets up today.




3 Given today’s decision, the record is likely to be the same in all future cases: It
will show that the defendant exhausted his peremptory challenges and did not
exercise one of them on the prospective juror in question. Thus, if the record in
front of us doesn’t suffice for waiver or invited error, it is unlikely that any record
will.
4 The Attorney General does not urge us to find that the appellate claim was
waived or that the error was invited, apparently because Novotny was not yet on
the books when Abu-Nantambu-El’s trial took place.                    See People v.
Abu-Nantambu-El, 2017 COA 154, ¶ 109 n.3, __ P.3d __, __ n.3 (Webb, J.,
dissenting). This position is a head-scratcher. Whether there was waiver or
invited error is not tethered to the timing of our Novotny opinion. The point is not
that Abu-Nantambu-El opted to forego peremptorily challenging Juror J to
circumvent Novotny. Rather, the point is that Abu-Nantambu-El waived his claim
or invited the error by purposely allowing Juror J to serve on the jury despite
having twelve peremptory challenges available, exercising all of them on other
prospective jurors (only one of whom he had challenged for cause), and failing to
ask for an extra peremptory challenge. The waiver and invited error doctrines
were certainly around before we decided Novotny. In any event, regardless of the
Attorney General’s flawed presupposition, the majority does not cabin today’s
ruling to trials that preceded Novotny. And, as mentioned, the majority concludes
that the record before us does not suggest that Abu-Nantambu-El invited the error
or purposely left Juror J on the jury. See maj. op. ¶ 38 n.7. Hence, I feel compelled
to address the waiver/invited error question.


                                          7
¶52      To be clear, I don’t fault defense counsel; they must operate within the

analytical framework our court has established. I place the blame at the feet of our

court.    The rules we have instituted incentivize gamesmanship: If, after the

incorrect denial of a challenge for cause, a defendant exercises a peremptory

challenge on the prospective juror in question, the error will be harmless; but if, in

the same situation, the defendant exhausts his peremptory challenges but does not

exercise one of them on that prospective juror, there will be an automatic reversal

in the event of a conviction.5

¶53      So, is there a better approach? After all, if a defendant like Novotny loses

on the ground of lack of prejudice and a defendant like Abu-Nantambu-El loses

based on waiver or invited error, defendants would always lose. And that’s not

fair.

¶54      Here’s what I would propose. I would rely on the provision in Rule 24(d)(3)

that permits requests for additional peremptory challenges.           I would then

encourage our trial court judges to grant a defendant’s request for an additional

peremptory challenge whenever they deny a colorable challenge for cause—i.e.,




5The majority’s analytical framework may also unfairly place defense counsel in
an ethical catch-22. See Novotny, ¶ 47, 320 P.3d at 1207 (Hood, J., concurring in part
and dissenting in part).


                                           8
one that is difficult to resolve and presents a close call. 6 The defendant can then

use that extra peremptory challenge on the prospective juror in question. If an

appellate court later determines that the challenge for cause was mistakenly

denied, there would not be an issue because the defendant either would have

excused the prospective juror with the additional peremptory challenge or, in the

event he elected not to do so, would be barred from raising the claim by waiver or

invited error. Of course, automatic reversal would still be warranted if the trial

court denied the defendant’s request for an additional peremptory challenge—the

waiver and invited error doctrines would not apply in such a case based on the

defendant’s attempt to obtain an additional peremptory challenge.

¶55   This methodology would have the added benefit of disincentivizing the

prosecution from opposing colorable challenges for cause. And it would give trial

court judges some comfort in knowing that the additional peremptory challenge

could cure the erroneous denial of such a challenge for cause.7 It is worth pointing




6In my experience, it is rare to have more than one such challenge for cause come
up in a single trial. But the rule allows the trial court to grant the defendant more
than one additional peremptory challenge if appropriate.
7Even after today’s decision, trial court judges would do well to offer a defendant
an additional peremptory challenge after denying a colorable challenge for cause.
In my view, denial of such a challenge for cause would constitute good cause
within the meaning of Rule 24(d)(3).


                                         9
out that ruling on a colorable challenge for cause is among a trial court judge’s

most difficult tasks. These decisions have to be made in the moment, on the bench,

with little time for research or contemplation, and often in a courtroom full of

individuals summoned for jury service who loathe delays. 8

¶56   Because I believe the majority errs in failing to conclude that

Abu-Nantambu-El waived the appellate claim or invited the error here, and

because I cannot in good conscience support the system the majority sets up today,

I do not join in its opinion.    Inasmuch as I don’t see a reason to overturn

Abu-Nantambu-El’s convictions, invalidate his habitual criminal adjudication,

and vacate his life sentence, I would reverse the judgment of the court of appeals.

Accordingly, I respectfully dissent.




8 As our jurisprudence reflects, trying to discern whether a prospective juror is a
compensated employee of a public law enforcement agency under section
16-10-103(1)(k), C.R.S. (2019), can be particularly daunting even for an appellate
court with ample time to research and analyze the issue. See, e.g., Ma v. People,
121 P.3d 205, 214 (Colo. 2005) (Coats, C.J., dissenting) (observing that the
majority’s conclusion that the prospective juror at issue was a compensated
employee of a public law enforcement agency “betray[ed] a fundamental lack of
appreciation for military organization and command structure by classifying the
military police corps, or branch, as such an agency”). Indeed, it is no coincidence
that this is the ground that proved to be tricky for the trial court in Novotny and
now rears its ugly head in this case.

                                        10
