<table id="opinion"><tr><td><br>Colorado Supreme Court Opinions || February 22, 2016<p align="center"><b>Colorado Supreme Court -- February 22, 2016</b><br>2016 CO 10. No. 12SC826. <i>Mulberger v. People.</i></p><p></p><p style="text-align: center">	<span style="font-size: 13px; color: #000000"><strong>The Supreme Court of the State of Colorado </strong><br>	2 East 14th Avenue • Denver, Colorado 80203</span></p><hr><p style="text-align: center">	<span style="font-size: 13px; color: #000000"> <strong>2016 CO 10</strong></span></p><hr><p style="text-align: center">	<span style="font-size: 13px; color: #000000"><strong>Supreme Court Case No. 12SC826 </strong><br>	<em>Certiorari to the Colorado Court </em><em>of </em></span><span style="font-size: 13px; color: #000000"><em>Appeals </em><br>	Court of Appeals Case No. 11CA482</span></p><hr><p>	<strong><span style="font-size: 13px; color: #000000">Petitioner: </span></strong></p><p>	<span style="font-size: 13px; color: #000000">Samuel J. Mulberger, </span></p><p>	<span style="font-size: 13px; color: #000000">v. </span></p><p>	<span style="font-size: 13px; color: #000000"><strong>Respondent: </strong></span></p><p>	<span style="font-size: 13px; color: #000000">The People of the State of Colorado.</span></p><hr><p style="text-align: center">	<span style="font-size: 13px; color: #000000"><strong>Judgment Affirmed </strong><br>	<em>en banc</em></span></p><p style="text-align: center">	<span style="font-size: 13px; color: #000000">February 22, 2016</span></p><hr><p>	<span style="font-size: 13px; color: #000000"><strong>Attorneys for Petitioner:</strong><br>	Douglas K. Wilson, Public Defender<br>	Kielly Dunn, Deputy Public Defender</span></p><p style="margin-left: 40px">	<em><span style="font-size: 13px; color: #000000">Denver, Colorado</span></em></p><p>	<span style="font-size: 13px; color: #000000"><strong>Attorneys for Respondent:</strong><br>	Cynthia H. Coffman, Attorney General<br>	Joseph G. Michaels, Assistant Attorney General </span></p><p style="margin-left: 40px">	<em><span style="font-size: 13px; color: #000000">Denver, Colorado</span></em></p><p>	<span style="font-size: 13px; color: #000000"><strong>JUSTICE BOATRIGHT </strong>delivered the Opinion of the Court.</span></p><p>	<span style="font-size: 13px; color: #000000"><strong>JUSTICE GABRIEL </strong>concurs in the judgment, and <strong>JUSTICE HOOD </strong>joins in the concurrence in the judgment.</span></p><p>	 </p><p>	 </p><p>	<span style="font-size: 13px; color: #000000">¶1       This case requires us to interpret the statute that provides for challenges for cause to potential jurors in criminal cases. Specifically, we must determine the scope of the provision that directs trial courts to sustain a challenge to a potential juror who is a “compensated employee of a public law enforcement agency.” § 16-10-103(1)(k), C.R.S. (2015). At his trial for four driving offenses, petitioner Samuel J. Mulberger brought such a challenge to a juror who worked as a nurse at the El Paso County Jail through a contractual arrangement with a private agency, and who received compensation for such work from the private agency. The trial court denied the challenge for cause, concluding that the potential juror was not a compensated employee of the jail. Mulberger then used a peremptory challenge to dismiss the potential juror and ultimately exhausted all of his challenges. At the conclusion of the trial, the jury found Mulberger guilty of all charges. The court of appeals affirmed the trial court’s denial of the challenge for cause in a published opinion. <span style="text-decoration: underline">Mulberger v. People,</span> 2012 COA 149, ¶ 1, __ P.3d __. We subsequently granted certiorari on two issues relating to Mulberger’s challenge for cause.<sup>1</sup> We now affirm.</span></p><p>	<span style="font-size: 13px; color: #000000">¶2       We hold that a “compensated employee of a public law enforcement agency,” as used in section 16-10-103(1)(k), is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. In this case, the potential juror at issue provided labor to the El Paso County Jail, but she was not paid by the jail, nor does the record contain any evidence that she was subject to the jail personnel’s direction and control. The potential juror therefore was not a  “compensated employee” of the jail under section 16-10-103(1)(k), and the trial court did not err in denying Mulberger’s challenge for cause. Because we find no error, we do not address the second issue in this case concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause. We accordingly affirm the judgment of the court of appeals.</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">I. Facts and Procedural History</span></strong></p><p>	<span style="font-size: 13px; color: #000000">¶3       The People charged Mulberger in El Paso County District Court with one count each of vehicular eluding, aggravated driving after revocation prohibited, following too closely, and driving an unregistered vehicle. During jury selection, the trial court stated that any potential juror who was a “compensated member of a public law enforcement agency” could not serve on the jury and then asked whether any of the potential jurors fit that classification. “Juror L” notified the court that, in addition to her work at a military hospital, she worked as a registered nurse for the El Paso County Jail. In later questioning from the court and defense counsel, Juror L clarified that she contracted with a private agency to work at the jail and that she worked at the jail only when she had the day off from her regular job and the jail had a need for nurses. When Juror L would work at the jail, the jail would pay the private agency, and the private agency would pay Juror L under her contract. At the time of voir dire, Juror L had not worked at the jail in “two or three weeks.”</span></p><p>	<span style="font-size: 13px; color: #000000">¶4       Mulberger challenged Juror L for cause, arguing that her work at the jail qualified her as a compensated employee of the El Paso County Jail. Mulberger also argued that, because of her job, Juror L had at least a “tenuous relationship with [a] prosecutorial or law enforcement arm of the state” that warranted her dismissal. <span style="text-decoration: underline">See  People in the Interest of R.A.D.,</span> 586 P.2d 46, 47 (Colo. 1978). The trial court denied the challenge, finding that Juror L was not employed by the El Paso County Jail. Mulberger later used a peremptory challenge to remove Juror L and ultimately exhausted all of his challenges. Following trial, the jury found Mulberger guilty of all four charges.</span></p><p>	<span style="font-size: 13px; color: #000000">¶5       <strong>Mulberger appealed, and the court</strong> of appeals affirmed the trial court in a published opinion. <span style="text-decoration: underline">Mulberger,</span> ¶ 1. In its opinion, the court of appeals held that, while the El Paso County Jail was a public law enforcement agency, Juror L did not fall under section 16-10-103(1)(k) because she was not employed by, and did not receive compensation from, the El Paso County Jail. <span style="text-decoration: underline">Id.</span> at ¶¶ 8–10. Instead, Juror L had a contractual arrangement with a private agency and received compensation for any work she performed at the El Paso County Jail from that private agency. <span style="text-decoration: underline">Id.</span> at ¶ 10. In addition, the court of appeals noted that the record contained no evidence that Juror L was subject to the direction and control of the jail, further distinguishing her from an employee of the jail. <span style="text-decoration: underline">Id.</span> at ¶ 11.</span></p><p>	<span style="font-size: 13px; color: #000000">¶6       We granted certiorari to determine whether a potential juror who contracts through a private company to work at a county jail is a “compensated employee of a public law enforcement agency” under section 16-10-103(1)(k), and additionally what remedy is appropriate if the trial court erred in its ruling on the challenge for cause.</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">II. Standard of Review</span></strong></p><p>	<span style="font-size: 13px; color: #000000">¶7<strong>       </strong>This case requires us to interpret the statute governing challenges for cause to potential jurors. Statutory interpretation is a question of law, which we review de novo. <span style="text-decoration: underline">People v. Johnson,</span> 2015 CO 70, ¶ 9, 363 P.3d 169, 174.</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">III. Analysis</span></strong></p><p>	<span style="font-size: 13px; color: #000000">¶8       To interpret section 16-10-103(1)(k) and determine whether the trial court should have sustained Mulberger’s challenge for cause under that provision, we first discuss the basic underpinnings of challenges for cause. We then examine the specific statute at issue, which requires a trial court to sustain a challenge for cause to a potential juror who is a “compensated employee of a public law enforcement agency.” <span style="text-decoration: underline">See</span> § 16-10-103(1)(k). We hold that a “compensated employee of a public law enforcement agency,” as used in section 16-10-103(1)(k), is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. We then apply that definition to Mulberger’s case and conclude that Juror L is not a compensated employee of the El Paso County Jail and that therefore the trial court did not err in denying Mulberger’s challenge for cause.</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">A. Challenges for Cause to Potential Jurors</span></strong></p><p>	<span style="font-size: 13px; color: #000000">¶9       Criminal defendants have a constitutional right to a trial before a fair and impartial jury. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; <span style="text-decoration: underline">People v. Rhodus, </span>870 P.2d 470, 473 (Colo. 1994). “Within constitutional limitations, the legislature determines the qualifications for jury service.” <span style="text-decoration: underline">People v. Novotny,</span> 2014 CO 18, ¶ 7, 320 P.3d 1194, 1197 (citing <span style="text-decoration: underline">People v. White,</span> 242 P.3d 1121, 1124 (Colo. 2010)). In exercising this authority, the Colorado General Assembly has provided that both the defendant and the prosecution can challenge for cause potential jurors who possess actual or implied bias for or against either party. § 16-10-103(1); Crim. P. 24(b); <span style="text-decoration: underline">Ma v. People,</span> 121 P.3d 205, 209–10 (Colo. 2005); <span style="text-decoration: underline">Rhodus,</span> 870 P.2d at 472–73. The proponent of a challenge bears the burden of demonstrating a potential juror’s disqualification under the statute. <span style="text-decoration: underline">People v. Rodriguez,</span> 914 P.2d 230, 263 (Colo. 1996) (citing <span style="text-decoration: underline">Wainwright v. Witt,</span> 469 U.S. 412, 423 (1985)). If the trial court determines that a potential juror falls within one of the statutory grounds for causal challenges, her bias is implied by law and the trial court must sustain a challenge for cause against her. <span style="text-decoration: underline">Novotny,</span> ¶ 9, 320 P.3d at 1197; <span style="text-decoration: underline">Rhodus,</span> 870 P.2d at 473–74. However, “[i]n addressing the breadth of [section 16-10-103(1)(k)], we must bear in mind that a representative cross-section of the community is an essential component of the Sixth Amendment right to a trial by jury.” <span style="text-decoration: underline">Binkley v. People,</span> 716 P.2d 1111, 1112 (Colo. 1986); <span style="text-decoration: underline">see also Washington v. People,</span> 186 P.3d 594, 600 (Colo. 2008).</span></p><p>	<span style="font-size: 13px; color: #000000">¶10       Within this framework, section 16-10-103(1) requires trial courts to sustain challenges for cause on specified grounds.<sup>2</sup> The only provision relevant to this case, however, is paragraph (k), which allows for challenges to potential jurors with specific employers—a “public law enforcement agency” or a public defender’s office. § 16-10-103(1)(k). We now turn to the language of that paragraph.</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">B. “Compensated Employee of a Public Law Enforcement Agency”</span></strong></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶11       In interpreting the applicability of section 16-10-103(1)(k), we seek to “ascertain and give effect to the purpose and intent of the General Assembly in enacting it.” <span style="text-decoration: underline">Johnson,</span> ¶ 11, 363 P.3d at 175 (quoting <span style="text-decoration: underline">Shaw v. 17 W. Mill St., LLC,</span> 2013 CO 37, ¶ 13, 307 P.3d 1046, 1049). To do so, we first look to the plain meaning of the statutory language, reading words and phrases in context and construing them according to common usage unless they have acquired a technical or particular meaning, whether by legislative definition or otherwise. <span style="text-decoration: underline">Id.; Ma,</span> 121 P.3d at 210.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶12       Section 16-10-103(1)(k) requires a 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.” § 16-10-103(1)(k); <span style="text-decoration: underline">see also</span> Crim. P. 24(b)(1)(XII) (containing virtually identical language except omitting “compensated”). The chief concerns underlying this provision are “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,” <span style="text-decoration: underline">Ma,</span> 121 P.3d at 210 (citing <span style="text-decoration: underline">R.A.D.,</span> 586 P.2d at 47), and, by analogy, that a compensated employee of a public defender’s office will favor, or will be perceived to favor, the defendant. Bearing those concerns in mind, we have previously determined that the plain language of the statute required the dismissal of such potential jurors as an assistant attorney general, <span style="text-decoration: underline">Novotny,</span> ¶ 13, 320 P.3d at 1198, a military police reservist, <span style="text-decoration: underline">Ma,</span> 121 P.3d at 207, and a security guard at the Colorado Bureau of Investigation, <span style="text-decoration: underline">R.A.D.,</span> 586 P.2d at 47. However, we have rejected challenges for cause to such potential jurors as employees of private companies operating detention facilities, <span style="text-decoration: underline">People v. Bonvicini,</span> 2016 CO 11, ¶ 21, __ P.3d __, employees of the Department of Homeland Security and the Transportation Security Administration, <span style="text-decoration: underline">People v. Speer,</span> 255 P.3d 1115, 1117 (Colo. 2011), and a county clerk and recorder, <span style="text-decoration: underline">Rhodus,</span> 870 P.2d at 471–72.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶13       As these cases reflect, section 16-10-103(1)(k) is concerned with the perception of prejudice, but in that paragraph the General Assembly aimed to address that concern only with respect to a specific subset of potential jurors: compensated employees of public law enforcement agencies and public defender’s offices. Hence, the statute implies a bias for potential jurors who meet those statutory definitions. We may not, however, extend that implied bias beyond the specific occupations included in the statute. <span style="text-decoration: underline">Rhodus,</span> 870 P.2d at 477; <span style="text-decoration: underline">see also Bonvicini,</span> ¶ 18 (disavowing a dictum from <span style="text-decoration: underline">R.A.D.</span> suggesting that trial courts must sustain challenges to potential jurors who have “even a tenuous relationship” to law enforcement); <span style="text-decoration: underline">People v. Veloz,</span> 946 P.2d 525, 529 (Colo. App. 1997) (“We may not assume the General Assembly intended to include individuals who volunteer for public law enforcement agencies, even on a nearly full-time basis, within the reach of § 16-10-103(1)(k).” (citing <span style="text-decoration: underline">Binkley,</span> 716 P.2d at 1114)).</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶14       Turning to the specific language of the statute, we note first that the parties do not dispute that the El Paso County Jail is a “public law enforcement agency.” Thus, that portion of the statute is not at issue here. The heart of the question, then, is what constitutes a “compensated employee of” such an agency. We next examine the plain language of that statutory phrase.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶15       The commonly accepted meaning of “compensated” is to receive payment in consideration for services rendered to another. <span style="text-decoration: underline">See People v. Coleman,</span> 844 P.2d 1215, 1218 (Colo. App. 1992); <span style="text-decoration: underline">Black’s Law Dictionary</span> 321 (9th ed. 2009). “Employee,” in turn, means a person who renders services to another (the employer) and is subject to the employer’s right to control the details of performance. <span style="text-decoration: underline">See Norton v. Gilman,</span> 949 P.2d 565, 567 (Colo. 1997); <span style="text-decoration: underline">Black’s Law Dictionary</span> 602. Receipt of payment from the employer is another factor tending to suggest the existence of an employment relationship. <span style="text-decoration: underline">Norton,</span> 949 P.2d at 567; <span style="text-decoration: underline">see also People v. Gilbert,</span> 12 P.3d 331, 335 (Colo. App. 2000) (“An ‘employee’ has been defined as one who renders labor or services to another for salary or wages.” (citing, inter alia, <span style="text-decoration: underline">Black’s Law Dictionary</span> 543 (7th ed. 1999))). Therefore, taken together, “compensated” and “employee” in the statute emphasize that a potential juror must work for the relevant public law enforcement agency, receive consideration for that work, and work under the agency’s direction and control.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶16       Additionally, the preposition “of” is a function word that denotes a relationship between two parts of a sentence or phrase. <span style="text-decoration: underline">Webster’s New College Dictionary</span> 1000 (2005). As it is used in section 16-10-103(1)(k), the preposition “of” logically signifies a direct relationship between ”compensated employee” and “public law enforcement agency”; in other words, the potential juror must be both compensated by and employed by a public law enforcement agency. <span style="text-decoration: underline">See id.</span> (equating “of” with “by”). The statute’s plain language makes no indication that it intends to cover any contractual or other relationships beyond this traditional and direct employment relationship. <span style="text-decoration: underline">See </span>Smith v. Exec. Custom Homes, Inc., 230 P.3d 1186, 1190 (Colo. 2010) (“[W]e must refrain from going beyond the plain meaning of the statute to ‘accomplish something the plain language does not suggest.’” (quoting <span style="text-decoration: underline">Scoggins v. Unigard Ins. Co.,</span> 869 P.2d 202, 205 (Colo. 1994))). While volunteers, private contractors, and others may provide services to public law enforcement agencies, their lack of direct compensation or direction from the public law enforcement agency places them outside of the statute’s scope in light of the General Assembly’s choice to distinguish “compensated employee[s]” from all other potential jurors. <span style="text-decoration: underline">See Binkley,</span> 716 P.2d at 1114 (“[I]f the legislature intended to include [unlicensed law school graduates and other persons formally trained in law] within the challenge for cause created by section 16-10-103(1)(k), [C.R.S. (1978),] it is reasonable to assume that it would have cast the statutory language in those specific terms and would not have used the much more restrictive word ‘lawyer’ in the statute.”); <span style="text-decoration: underline">Henisse v. First Transit, Inc.,</span> 247 P.3d 577, 580 (Colo. 2011) (“The General Assembly had the opportunity to include drivers employed by independent contractors who contract with RTD as ‘public employee[s]’ [under the Colorado Governmental Immunity Act] but chose not to do so.”). Accordingly, “compensated employee” in section 16-10-103(1)(k) means a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶17       With this understanding in mind, we now determine whether Juror L qualifies as a compensated employee of a public law enforcement agency under section 16-10-103(1)(k).</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">C. Application</span></strong></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶18       Considering the facts on record in this case, we conclude that Juror L is not a “compensated employee of a public law enforcement agency” for purposes of section 16-10-103(1)(k).<sup>3</sup> While Juror L does provide labor and services to the El Paso County Jail, Mulberger did not produce evidence sufficient to show that her work arrangement possessed the other two hallmarks necessary to qualify her as a “compensated employee” of the jail under the statute.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶19       First, Juror L is not paid by a public law enforcement agency, and so she cannot be considered a compensated employee of one. While Juror L’s contractual arrangement with a private agency leads her to occasionally work at the El Paso County Jail, she does not directly receive compensation from the jail. That the El Paso County Jail pays the private agency for supplying nurses such as Juror L to the jail is immaterial: The fact remains that Juror L is paid by the private agency and not by the El Paso County Jail like an employee under the statute would be.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶20       Second, the record does not contain any evidence that Juror L was subject to the jail personnel’s direction and control. While the jail’s need for nurses dictated whether Juror L worked and received compensation under her contract with the private agency, Mulberger failed to produce evidence sufficient to show that the jail had control over how she performed her job as a nurse. <span style="text-decoration: underline">See Rodriguez,</span> 914 P.2d at 263.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶21       Thus, Juror L does not qualify as a compensated employee of a public law enforcement agency under section 16-10-103(1)(k). We therefore conclude that the court of appeals did not err in affirming the trial court’s denial of Mulberger’s challenge for cause to Juror L.</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">IV. Conclusion</span></strong></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶22       For the foregoing reasons, we conclude that an individual who contracts with a private agency to provide services at a publicly operated county jail, and who receives payment from the private agency rather than the jail, is not a compensated employee of a public law enforcement agency for purposes of section 16-10-103(1)(k). Because we find no error, we do not address the second issue in this case concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause. We therefore affirm the court of appeals.</span></p><br><hr align="left" style="text-align: center" width="350"><p style="text-align: left">	<span style="font-size: 13px; color: #000000"><sup>1</sup> We granted certiorari to review the following issues:</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">1. Whether the court of appeals erred in concluding that a juror who was a contract employee of a county jail was not an employee of a public law enforcement agency for purposes of section 16-10-103(1)(k), C.R.S. (2015).</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">2. Whether automatic reversal is required when the trial court erroneously denies a challenge for cause and the defendant then uses a peremptory challenge to remove the potential juror and exhausts his peremptory challenges. </span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000"><sup>2 </sup>Section 16-10-103(1) reads in its entirety as follows The court shall sustain a challenge for cause on one or more of the following grounds:</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(a) Absence of any qualification prescribed by statute to render a person competent as a juror;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(b) Relationship 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;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(c) Standing in the relation of guardian and ward, employer and employee, landlord and tenant, debtor and creditor, principal and agent to, or being a member of the household of, or partner in business with, or surety on any bond or obligation for any defendant;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(d) The juror is or has been a party adverse to the defendant in a civil action or has complained against or been accused by him in a criminal prosecution;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(e) The juror has 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 any other investigatory body which inquired into the facts of the crime charged;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(f) The juror was a juror at a former trial arising out of the same factual situation or involving the same defendant;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(g) The juror was a juror in a civil action against the defendant arising out of the act charged as a crime;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(h) The juror was a witness to any matter related to the crime or its prosecution</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(i) The juror occupies 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;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(j) The existence of a state of mind in the juror evincing enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at trial;</span></p><p style="text-align: left; margin-left: 40px">	<span style="font-size: 13px; color: #000000">(k) The juror is a compensated employee of a public law enforcement agency or a public defender’s office.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000"><sup>3</sup> Mulberger notes that Crim. P. 24(b)(1)(XII) omits the word “compensated.” In part because we granted certiorari specifically to determine the applicability of section 16-10-103(1)(k), <span style="text-decoration: underline">see supra</span> note 1, and in part because, under the facts of this case, Juror L does not fall within the scope of either the statute or the rule, we need not address any possible tension between the statute and the rule. </span></p><p style="text-align: center">	 </p><p style="text-align: left">	 </p><p style="text-align: left">	 </p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">JUSTICE GABRIEL concurs in the judgment, and JUSTICE HOOD joins in the concurrence in the judgment.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">JUSTICE GABRIEL, concurring in the judgment.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶23       In his concurring opinion in <span style="text-decoration: underline">PDK Laboratories Inc. v. United States Drug Enforcement Administration,</span> 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment), then-Judge and now-Chief Justice John Roberts noted the “cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” In this case, the majority concludes that an individual who contracts with a private agency to provide services at a publicly-operated county jail and who is paid by the private agency is not a compensated employee of a public law enforcement agency for purposes of section 16-10-103(1)(k), C.R.S. (2015). Maj. op. ¶ 22. The majority thus affirms the court of appeals division’s decision.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶24 Although I agree that the division’s ultimate determination should be affirmed, in my view, our decision in <span style="text-decoration: underline">People v. Novotny,</span> 2014 CO 18, 320 P.3d 1194, is dispositive, and we therefore need not—and should not—reach the merits of the statutory interpretation question presented. <span style="text-decoration: underline">See PDK Labs.,</span> 362 F.3d at 799 (Roberts, J., concurring in part and concurring in the judgment). Accordingly, I respectfully concur in the judgment only. </span></p><p style="text-align: center">	<span style="font-size: 13px; color: #000000"><strong>I. </strong><strong>Novotny</strong></span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶25       In <span style="text-decoration: underline">Novotny,</span> ¶ 27, 320 P.3d at 1203, we overruled our decision in <span style="text-decoration: underline">People v. Macrander,</span> 828 P.2d 234, 244 (Colo. 1992), in which we had held that a trial court’s erroneous denial of a challenge for cause required reversal if the defendant then exercised a peremptory challenge to remove the challenged juror and exhausted all of his or her remaining peremptory challenges. We thus concluded that (1) allowing a defendant fewer peremptory challenges than authorized, or than available to and exercised by the prosecution, is not, in and of itself, structural error; and (2) reversal for other than structural error is appropriate only when dictated by a case-specific, outcome-determinative evaluation of the likelihood that the error affected the verdict. <span style="text-decoration: underline">Novotny,</span> ¶ 27, 320 P.3d at 1203.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶26       The outcome-determinative evaluation to which we referred requires an assessment of harmlessness, under which a defendant must show prejudice to obtain reversal. <span style="text-decoration: underline">Id.</span> at ¶¶ 2, 18–23, 27, 320 P.3d at 1196, 1200–03; <span style="text-decoration: underline">accord id.</span> at ¶ 30, 320 P.3d at 1203 (Hood, J., concurring in part and dissenting in part). Most courts that have addressed the question, including divisions of our court of appeals, have concluded that to make such a showing of prejudice, a defendant ordinarily must show that a biased or incompetent juror participated in deciding the defendant’s guilt. <span style="text-decoration: underline">See, e.g., People v.  Wise,</span> 2014 COA 83, ¶ 28, 348 P.3d 482, 489 (collecting cases), <span style="text-decoration: underline">cert denied,</span> No. 14SC678, 2015 WL 1610548 (Colo. Apr. 6, 2015).</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶27       Here, Mulberger has not asserted that a biased or incompetent juror participated in deciding his guilt. Accordingly, even if he were correct that the trial court and the division of the court of appeals erred in denying his challenge for cause, any error would have been harmless. <span style="text-decoration: underline">See id.</span> at ¶ 29, 348 P.3d at 489. Accordingly, I would affirm without reaching the merits of the statutory interpretation question that Mulberger presents.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶28       I am not persuaded otherwise by Mulberger’s contentions that (1) <span style="text-decoration: underline">Novotny</span> did not address the question of retroactivity and did not indicate the proper remedy if <span style="text-decoration: underline">Novotny</span> applies; (2) the application of <span style="text-decoration: underline">Novotny</span> to this case would violate Mulberger’s due process rights because <span style="text-decoration: underline">Novotny</span> announced a new rule without fair warning; and (3) even if <span style="text-decoration: underline">Novotny</span> could apply, Mulberger is entitled to a remand to allow him to try to show that an “undesirable” or “objectionable” juror whom he would have removed with an additional peremptory challenge sat on his jury. For several reasons, I cannot agree.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶29       First, we applied the <span style="text-decoration: underline">Novotny</span> rule in <span style="text-decoration: underline">Novotny</span> itself, remanding the cases there before us to consider whether the errors in those cases were harmless under the proper outcome-determinative test. <span style="text-decoration: underline">See Novotny,</span> ¶ 27, 320 P.2d at 1203. Accordingly, we at least implicitly indicated that <span style="text-decoration: underline">Novotny</span> should be applied to pending cases, and notwithstanding Mulberger’s assertion to the contrary, we expressly suggested the proper remedy for when <span style="text-decoration: underline">Novotny</span> applies, namely, a remand for a harmless error analysis.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶30       Second, for the reasons set forth by the division in <span style="text-decoration: underline">Wise,</span> ¶¶ 10–11, 348 P.3d at 486, it is not at all clear to me that applying <span style="text-decoration: underline">Novotny</span> would constitute a retroactive application of a change in the law. Specifically, as the division in <span style="text-decoration: underline">Wise</span> observed, the holding in <span style="text-decoration: underline">Novotny</span> does not affect the process for challenging prospective jurors for cause, the standards applicable to the determination of any such challenge, or any matter pertinent to the use of peremptory challenges. <span style="text-decoration: underline">Id.</span> at ¶ 11, 348 P.3d at 486. Nor does it make criminal that which was not, alter any burden of proof, affect the admissibility or weight of evidence, or enhance a defendant’s punishment. <span style="text-decoration: underline">Id. </span> Accordingly, the holding in <span style="text-decoration: underline">Novotny</span> had no legal effect on the proceedings in the district court. <span style="text-decoration: underline">Id.</span> Rather, it changed only the framework for determining whether the appellate court must reverse a conviction because a defendant used a peremptory challenge to excuse a juror whom the defendant had unsuccessfully challenged for cause. <span style="text-decoration: underline">Id.</span> And applying <span style="text-decoration: underline">Novotny</span> here would not be applying it to a prior appeal but rather to a pending appeal as to which the appellate remedy is not yet final. <span style="text-decoration: underline">Id.</span> </span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶31       Third, even if the application of <span style="text-decoration: underline">Novotny</span> here could be said to be retroactive, I could not say that <span style="text-decoration: underline">Novotny</span> resulted in a new rule of law that was wholly unforeseeable to Mulberger. The automatic reversal rule was not definitively adopted in Colorado until our 1992 decision in <span style="text-decoration: underline">Macrander,</span> 828 P.2d at 244. Thereafter, a series of United States and Colorado Supreme Court cases cast doubt on the validity of the automatic reversal rule, at least as a matter of federal constitutional law, and by the time of Mulberger’s trial, only a minority of states adhered to the automatic reversal rule, and the federal courts had rejected it. <span style="text-decoration: underline">See Wise,</span> ¶ 14, 348 P.3d at 486–87 (collecting cases).</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶32       Finally, with respect to Mulberger’s contention that if <span style="text-decoration: underline">Novotny</span> applies, then he is entitled to a remand, he asserts that <span style="text-decoration: underline">Novotny</span> should be interpreted to find prejudice when a defendant exhausts his peremptory challenges and a juror who was “undesirable” or “objectionable” to the defendant (i.e., one against whom the defendant would have exercised a peremptory strike if one were available) remains on the jury. In support of this argument, Mulberger cites a number of out-of-state cases that have adopted such a standard. <span style="text-decoration: underline">See, e.g., State v. Ross,</span> 849 A.2d 648, 670 (Conn. 2004); Busby v. State<em>,</em> 894 So. 2d 88, 96–97 (Fla. 2004); <span style="text-decoration: underline">Hanson v. State</span><em>,</em> 72 P.3d 40, 48–49 (Okla. Crim. App. 2003); <span style="text-decoration: underline">Johnson v. State</span><em>,</em> 43 S.W.3d 1, 5–6 (Tex. Crim. App. 2001).</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶33       Were I writing on a blank slate, I might be persuaded to adopt such a standard, which seeks to give effect to the distinction between challenges for cause and peremptory challenges. I, however, am not writing on a blank slate. Rather, in <span style="text-decoration: underline">Novotny,</span> ¶ 27, 320 P.3d at 1203, we concluded that reversal based on an erroneous denial of a challenge for cause is appropriate only when dictated by an outcome-determinative evaluation of the likelihood that the error affected the verdict. I believe that such an evaluation can be made under existing law, and I perceive no need to adopt a new test for prejudice here. <span style="text-decoration: underline">See People v. Hankins,</span> 2014 COA 71, ¶¶ 31–32, 361 P.3d 1033, 1039 (noting that whether jurors can give a defendant a fair trial can be determined by existing law and thus perceiving no need to develop a new test that would turn on the defendant’s subjective determination that a prospective juror is objectionable or undesirable), <span style="text-decoration: underline">cert denied,</span> No. 14SC552, 2015 WL 7176433 (Colo. Nov. 16, 2015).</span></p><p style="text-align: center">	<strong><span style="font-size: 13px; color: #000000">II. Conclusion</span></strong></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">¶34       For these reasons, I would affirm the division’s decision by relying on <span style="text-decoration: underline">Novotny</span> and would not reach the merits of the statutory interpretation question that Mulberger presents. Accordingly, I respectfully concur in the judgment only.</span></p><p style="text-align: left">	<span style="font-size: 13px; color: #000000">I am authorized to state that JUSTICE HOOD joins in this concurrence in the judgment. </span></p><br><p><i><font size="1">These opinions are not final. They may be modified, changed or withdrawn in accordance with Rules 40 and 49 of the Colorado Appellate Rules. 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