The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 31, 2018
2018COA79
No. 2016CA0854 — Constitutional Law — Fifth Amendment —
Double Jeopardy; Crimes — Murder in the First Degree —
Inchoate Offenses — Criminal Attempt
When a defendant attempts to deliberately kill one person but
mistakenly kills a different person and is convicted of both the
attempted murder of the intended victim and the actual murder of
the unintended victim, a division of the court of appeals concludes
that the attempted murder conviction must be vacated because it is
a lesser included offense of the murder conviction.
The division also affirms the trial court’s rulings granting the
prosecution’s motion for a mistrial, admitting an unavailable
witness’s statements under the doctrine of forfeiture by wrongdoing
and CRE 807, and rejecting the defense’s proposed complicity
instruction.
The judgment is affirmed in part and vacated in part, and the
case is remanded for correction of the mittimus.
COLORADO COURT OF APPEALS 2018COA79
Court of Appeals No. 16CA0854
Arapahoe County District Court No. 14CR1968
Honorable Frederick T. Martinez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brandon D. Jackson,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FREYRE
Terry and Navarro, JJ., concur
Announced May 31, 2018
Cynthia H. Coffman, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver,
Colorado, for Plaintiff-Appellee
Eric A. Samler, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Brandon D. Jackson, appeals the judgment of
conviction for first degree murder after deliberation, attempted first
degree murder after deliberation, attempted first degree murder
with extreme indifference, conspiracy to commit first degree
murder, and accessory. The court declared a mistrial after defense
counsel elicited undisclosed alibi evidence during Jackson’s ex-
wife’s cross-examination. In a second trial, a jury convicted him as
charged.
¶2 Jackson challenges the trial court’s decision to declare a
mistrial over his objection. He also contends that at the second
trial, the court erred in (1) allowing testimonial hearsay under the
forfeiture by wrongdoing doctrine; (2) rejecting his tendered
complicity instruction; and (3) imposing separate convictions and
sentences for attempted murder after deliberation and murder after
deliberation — a novel issue raised by the unique facts of this case.
We affirm in part, vacate in part, and remand for correction of the
mittimus.
I. Background
¶3 Jackson and his friends, Amin El-Howeris, Devon
Grant-Washington, Bruce Roberts, Quinten Sauls, Tyrel Walker,
1
and Roderick Ruben, were members of “Sicc Made,” a subset of the
Crips gang. Victim E.O. belonged to a rival gang called “Most
Hated.” In August 2011, members of Most Hated fired gunshots
into Jackson’s apartment. At a party on the night of December 23
and into the morning of December 24, 2011, E.O. shot El-Howeris,
but El-Howeris survived.
¶4 On the night of December 25, 2011, and into the early
morning hours of December 26, Jackson, El-Howeris,
Grant-Washington, Roberts, Sauls, Walker, and Ruben gathered at
Aisha Amin’s apartment to discuss retaliating against E.O. Sauls
said, “They mess with one of us, they mess with all of us.” They
passed around a black gun with a laser sight and discussed killing
E.O. They knew where E.O. lived and that he drove a gold SUV.
The men left in two Ford Explorers — Jackson drove the green Ford
Explorer with Sauls as his passenger. The others left in a blue Ford
Explorer. They met at E.O.’s apartment complex and
Grant-Washington got into the green Ford Explorer with Jackson
and Sauls. Cell phone tower records placed Jackson, Roberts, and
Grant-Washington at the same location.
2
¶5 Victim Y.M. lived in E.O.’s apartment complex. He arrived
home from work at 3 a.m. driving a gold SUV similar to E.O.’s and
parked across the street from E.O.’s apartment. Believing Y.M. was
E.O., either Sauls or Grant-Washington got out of Jackson’s car,
walked over to the SUV, and shot Y.M. twice in the head, killing him
instantly. When they realized they had killed the wrong man, the
men turned and fired numerous shots into E.O.’s apartment.
II. Mistrial — Double Jeopardy
¶6 Jackson first challenges the court’s decision to declare a
mistrial after cross-examination of Leah Jackson (his ex-wife)
revealed an undisclosed alibi defense. He contends that the trial
court failed to consider less drastic alternatives, that no manifest
necessity for a mistrial existed, and that his retrial is barred by
double jeopardy. We perceive no grounds for reversal.
A. Additional Facts
¶7 Five months after Y.M.’s murder, Law Enforcement
Investigator Kim Johnston interviewed Ms. Jackson concerning
Jackson’s whereabouts the previous December. Ms. Jackson said
Jackson had spent the night at her house either on December 24
into December 25 or on December 25 into December 26. The
3
investigator said she knew it “had to have been the 24th into the
25th.”
¶8 Several years later and in preparation for the trial of a
codefendant, a different investigator re-interviewed Ms. Jackson.
Ms. Jackson said that Jackson spent the night with her on
Christmas Eve and was at her house when she left the next
morning to visit her parents. When she returned at 8 p.m.,
Jackson was gone and she did not recall him coming to her house
the next day, December 26.
¶9 Unbeknownst to the prosecution, approximately one month
before the first trial, Ms. Jackson contacted the defense to provide
new information. She told defense counsel and a defense
investigator that she was now certain that Jackson had spent the
night of December 25 with her and that he woke up at her house
the morning of December 26, contrary to the information contained
in the two previous reports. She explained that she came home
from her parents’ house and had to clean her house. She finished
cleaning late — between 11 p.m. and midnight — and that Jackson
arrived shortly thereafter. The defense did not endorse an alibi
defense or move to continue the trial to do so.
4
¶ 10 During opening statement, the prosecutor explained that
Jackson did not shoot Y.M. and that he sought a conviction based
on complicity. He said the evidence would show that Jackson and
the others spent the evening of December 25 into the early morning
of December 26 discussing and planning to retaliate against E.O. by
killing him. This meeting occurred at Amin’s apartment. The
defense waived opening statement and did not reveal its theory of
defense.
¶ 11 During the prosecution’s case, Ms. Jackson testified on direct
examination that Jackson stayed overnight on Christmas Eve and
that they opened presents with their kids Christmas morning. She
said “after that, I got the kids dressed and I got myself dressed and
we left to my mom’s early, around 10:00.” She returned home later
that night — “probably like around 10:00, between 9:00 and 10:00”
— and Jackson was not there.
¶ 12 During cross-examination, Ms. Jackson confirmed the same
sequence of events. However, she then added, when asked, that
Jackson had returned later that night and spent the night of
December 25 with her. Defense counsel asked her the following:
5
DEFENSE COUNSEL: And as you’re sitting
here today, Ms. Jackson, is there any doubt in
your mind that it was Christmas night, the
early morning hours of the 26th, that Mr.
Jackson came back to your house?
MS. JACKSON: I have no doubt.
¶ 13 Following cross-examination and in a bench conference, the
prosecutor objected to this new information and said, “This is
clearly alibi information. We received no notice of an alibi defense
by the defense.” He explained that the new testimony placed
Jackson with his ex-wife, rather than at Amin’s apartment when
the killing was planned or at E.O.’s apartment complex. The
prosecutor moved for a mistrial and argued that less drastic
alternatives would not undo the prejudice created to its case.
¶ 14 Defense counsel argued that she was not pursuing an alibi
defense or requesting an alibi instruction. She explained that the
cross-examination concerned Ms. Jackson’s initial statement to
Investigator Johnston and was intended to rebut Ms. Jackson’s
direct examination concerning when Jackson stayed at her house.
Defense counsel denied trying to “come in on the 11th hour and
provide an alibi.”
6
¶ 15 The court said it had three potential options: (1) instruct the
jury that this was not alibi evidence; (2) strike the testimony; or (3)
declare a mistrial. It noted that no one had asked the crucial
question — whether Jackson ever left Ms. Jackson’s house the
morning of December 26.
¶ 16 The court questioned Ms. Jackson outside the jury’s presence
concerning how and when this information was disclosed to the
defense. Ms. Jackson said she had provided the new information to
the defense “last month” and confirmed she had never revealed it to
the prosecution. The prosecutor renewed his mistrial motion. He
asserted that (1) the defense had violated its Crim. P. 16 obligation
to disclose this alibi evidence; (2) a twenty-four to forty-eight hour
delay would be insufficient time to investigate and to remedy the
prejudice; and (3) striking the testimony would be insufficient
because the “bell just can’t be unrung at this point and it’s not
something that can just be sanitized or scrubbed from the jury’s
mind” given that the jury already heard the evidence. Defense
counsel objected to the mistrial, but otherwise agreed with the
alternate remedies of striking the testimony or instructing the jury.
The court deferred ruling until the end of Ms. Jackson’s testimony.
7
¶ 17 On redirect examination, Ms. Jackson then confirmed that
Jackson was with her the entire night and had never left during the
early morning hours of December 26. She also revealed that she
initiated contact with the defense to provide the new information
and denied having done so at Jackson’s behest.
¶ 18 The court then ruled that although it had a variety of potential
remedies, it believed a mistrial was appropriate “as a result of the
defendant’s misconduct.” It found that the information was new, it
constituted alibi evidence, and it had never been disclosed to the
prosecution. The court found that these circumstances amounted
to manifest necessity to declare a mistrial, explaining that it did not
know how the prosecution could recover from evidence in the
defense’s possession for more than a month that was sprung on it
midtrial.
B. Standard of Review and Relevant Law
¶ 19 A trial court has broad discretion in ruling on a mistrial
motion, and we will not disturb the court’s decision in the absence
of an abuse of discretion resulting in prejudice to the defendant.
People v. Chastain, 733 P.2d 1206, 1213 (Colo. 1987). A trial court
is better able than a reviewing court to determine whether improper
8
testimony had any adverse effect on the jury. People v. Ellis, 30
P.3d 774, 777-78 (Colo. App. 2001).
¶ 20 Declaring a mistrial is “the most drastic of remedies” and is
warranted only when the prejudice is too substantial to be remedied
by other means. See People v. Santana,
255 P.3d 1126, 1132 (Colo.
2011); see also People v. Pagan,
165 P.3d 724, 728 (Colo. App.
2006). The Federal and Colorado Double Jeopardy Clauses bar a
retrial unless the defendant consents to the mistrial or the mistrial
is legally justified. U.S. Const. amend. V; Colo. Const. art. II, § 18;
People v. Berreth,
13 P.3d 1214, 1216 (Colo. 2000).
¶ 21 A trial court is justified in declaring a mistrial when the
circumstances amount to “manifest necessity” or when it finds, in
its discretion, that the ends of public justice would not be served by
continuing the proceedings. People v. Segovia,
196 P.3d 1126, 1133
(Colo. 2008); see also Berreth,
13 P.3d at 1216.
¶ 22 Manifest necessity includes circumstances that are
“substantial and real, [and] that interfere with or retard ‘the
administration of honest, fair, even-handed justice to either, both,
or any, of the parties to the proceeding.’” Segovia,
196 P.3d at 1133
(quoting People v. Castro,
657 P.2d 932, 942 (Colo. 1983)). The
9
General Assembly has identified circumstances where a mistrial is
justified in section 18-1-301(2)(b), C.R.S. 2017. They include (1) a
physical impossibility to proceed with the trial in conformity with
the law; (2) a legal defect in the proceedings that would make any
judgment entered upon a verdict reversible as a matter of law; (3)
prejudicial conduct that has occurred in or outside the courtroom
making it unjust to either the defendant or the State to proceed
with the trial; (4) the jury’s inability to render a verdict; and (5) a
juror’s false statement in voir dire. Id. The statute and cases
establish that manifest necessity arises where circumstances are
serious and outside of the court’s control. Segovia,
196 P.3d at
1133. Moreover, a mistrial is justified only when other reasonable
alternatives are no longer available. Id.; Paul v. People,
105 P.3d
628, 633 (Colo. 2005); Doumbouya v. Cty. Court,
224 P.3d 425, 428
(Colo. App. 2009).
C. Application
¶ 23 We begin by noting that Jackson does not challenge the
court’s ruling that Ms. Jackson’s testimony constituted alibi
evidence. For our analysis, we presume that it is. A defendant may
not elicit alibi evidence, absent good cause, without first complying
10
with the alibi disclosure requirements of Crim. P. 16 (II)(d). See
People v. Hampton, 696 P.2d 765, 775-76 (Colo. 1985) (upholding
the exclusion of alibi evidence under previous version of the rule
when defense did not comply with disclosure requirements); see
also Crim. P. 16(III)(g) (allowing the court to impose sanctions for a
failure to comply with the rules); People v. Greenwell,
830 P.2d
1116, 1119 (Colo. App. 1992) (finding the district court did not
abuse its discretion in excluding a defense witness not properly
endorsed by the defense under the rules). Because the prosecution
must often prove a defendant’s presence during the commission of a
crime, the rule’s disclosure requirements are designed to provide
the prosecution with adequate means to evaluate and meet the alibi
testimony of defense witnesses. Hampton,
696 P.2d at 775.
¶ 24 The undisputed record shows that the defense provided no
notice to the prosecution of Ms. Jackson’s new claim that Jackson
was with her during the planning and commission of the crimes,
despite receiving it one month before trial. It also shows that the
defense elicited this new information during Ms. Jackson’s cross-
examination in violation of Crim. P. 16(II)(d). We are not persuaded
that the court’s decision to permit Ms. Jackson’s redirect
11
examination in front of the jury created the need for a mistrial
because her response was unknown and, as the court noted, may
have mooted the parties’ arguments had she testified that Jackson
left during the early morning hours of December 26.1 Instead, it
was the defense’s decision not to disclose the new information but
nevertheless to elicit it on cross-examination in violation of Rule 16,
which shows the circumstances giving rise to the mistrial were
outside the court’s control, and which supports the trial court’s
finding that the mistrial resulted from the defense’s misconduct.
See Berreth, 13 P.3d at 1217 (“[B]oth case law and statutory criteria
show that circumstances must be serious and outside the control of
the trial court in order to justify a finding of ‘manifest necessity’” to
justify a mistrial.); see also State v. Carter,
2016 WL 4268774,
2016-Ohio-5371 (Ohio Ct. App. 2016) (declaring a mistrial was not
an abuse of discretion for defense’s failure to properly disclose alibi
evidence).
1For the same reasons, we reject Jackson’s argument that the
prosecutor’s failure to object until the end of cross-examination
created the prejudice. Because the prosecutor did not know what
Ms. Jackson would say, he could not object until the alibi evidence
was elicited.
12
¶ 25 We next address and reject Jackson’s contention that the trial
court failed to consider less drastic alternatives to a mistrial. To the
contrary, the record reveals that the court considered the factors set
forth in Segovia and the statute. It discussed the possibility of
striking the testimony, noting that the jury heard pure alibi
evidence that Jackson was nowhere near the crime. Given the
noncompliance with the disclosure rule and the significance of this
new evidence, it found this option insufficient to cure the prejudice
to the prosecution. See Williamsen v. People, 735 P.2d 176, 183
(Colo. 1987) (“Questions of the probative value and possible
prejudicial impact of evidence are addressed to the sound discretion
of the trial court, and the trial judge’s rulings will not be disturbed
absent a clear abuse of discretion.”).
¶ 26 Implicit in the court’s finding that striking the testimony
would not ameliorate the prejudice was its determination that an
instruction requiring the jury to disregard the evidence would be
equally insufficient. Indeed, the court said it could not see how the
prosecution could recover from what had been given to the defense
a month earlier. See Paul,
105 P.3d at 633 (The trial court did not
13
abuse its discretion by implicitly determining that “other reasonable
alternatives [were] no longer available.”).
¶ 27 Next, the record shows that the trial court considered a short
delay in the trial (forty-eight hours) for the prosecution to
investigate and meet the new evidence. However, it found that the
time required just to sort through the hundreds of jail calls to
ascertain whether Jackson had influenced his ex-wife’s new
testimony would far exceed forty-eight hours. Noting that this was
a cold case, the court found “the prosecution cannot reasonably be
expected to attempt to uncover any impeachment information, . . .
whether it [be] during trial or during a . . . break in the
proceedings.” After considering the factors outlined in Hampton —
reason for nondisclosure, degree of culpability associated with
nondisclosure, extent of prejudice to the other party, and
reasonable lesser alternatives to exclusion of the alibi evidence —
the court ultimately concluded that the alibi evidence was
particularly significant because it completely exculpated Jackson
from criminal conduct, and that justice to both parties could only
“be served by either rebutting this information or the case being
14
dismissed if this alibi is, in fact, true.” Noting this was not an easy
decision, the court granted the People’s request for a mistrial.
¶ 28 Because the trial court carefully considered the parties’
arguments and its available options, and because it was in the best
position to assess the prejudicial impact, we discern no abuse of
discretion in its decision to declare a mistrial. To deprive trial
courts of their ability to declare mistrials in circumstances such as
these would cripple their ability to control and sanction counsel’s
conduct in their courtroom. See Arizona v. Washington, 434 U.S.
497, 513 (1978). Indeed, “[n]either party has a right to have his
case decided by a jury which may be tainted by bias; in these
circumstances, ‘the public’s interest in fair trials designed to end in
just judgements’ must prevail over the defendant’s ‘valued right’ to
have his trial concluded before the first jury impaneled.”
Id. at 516
(footnotes omitted) (quoting Wade v. Hunter,
336 U.S. 684, 689
(1949))).
¶ 29 Accordingly, we affirm the court’s ruling declaring a mistrial.
15
III. Walker’s Hearsay Statements are Admissible Under the
Doctrine of Forfeiture by Wrongdoing
¶ 30 Jackson next contends that the trial court erroneously
admitted testimonial hearsay statements of uncharged
co-conspirator Tyrel Walker to law enforcement officials under the
doctrine of forfeiture by wrongdoing and under the residual hearsay
exception, CRE 807. He argues that insufficient evidence shows
that Walker’s decision not to testify related to him and that Walker’s
statements were unreliable and therefore inadmissible. We disagree
and conclude that (1) the prosecution proved by a preponderance of
the evidence that Jackson forfeited his right to confront Walker and
(2) the trial court did not abuse its discretion in admitting Walker’s
statements.
A. Additional Facts
¶ 31 Walker spoke twice with Investigator Craig Tangeman about
the shooting — first on February 23, 2012, and again on February
28, 2012. Walker disavowed any knowledge of the shooting in the
first interview. However, during the February 28 interview, he
admitted being with the group of people involved in the shooting.
Walker said that Jackson drove the green Ford Explorer and that
16
Walker was a passenger in the blue Ford Explorer. Walker did not
witness the shooting but heard the fired shots. According to
Walker, after the shots were fired, Jackson drove up to the blue
Ford Explorer, said that the wrong person had been shot, and said
they then shot into E.O.’s apartment.
¶ 32 On August 18, 2015, Walker wrote a letter to the prosecution
saying he did not want nor intend to participate in the upcoming
trial. He explained that he was already serving a seventy-year
prison sentence, that he was not a star witness, and that he did not
remember the day or crime in question and would say so if brought
to court. Thereafter, the prosecution moved to admit Walker’s
February 28 statements, alleging that Jackson had forfeited his
right to confront Walker by causing him not to testify.
¶ 33 At the hearing, the prosecutor produced evidence of jail
telephone calls between Jackson and other members of Sicc Made,
as well as law enforcement officials’ investigation concerning the
identities of the persons named in the phone calls. That evidence
revealed that Jackson’s cousin, Mikey Clopton, was in the Sterling
prison where Walker was also housed. In a phone call to Juhn
Simmons (a Sicc Made member), Jackson asked Simmons to ask
17
Clopton to ask Walker if he intended to take the stand and also to
relay that Walker was the prosecution’s star witness. In a second
call to Simmons, Jackson directed that Walker contact the defense
investigator and “see if he’s willing to recant, pretty much.”
¶ 34 Jackson argued that the forfeiture by wrongdoing doctrine did
not apply because the prosecution failed to prove that he caused
Walker’s unavailability with the intent to prevent him from
testifying. He further argued that the statements constituted
inadmissible hearsay. He makes the same arguments on appeal.
¶ 35 In a detailed oral order, the trial court found that (1) the
prosecution proved, by a preponderance of the evidence, that
Jackson forfeited his right to confrontation because he caused
Walker’s refusal to testify; and (2) Walker’s statements were
admissible under CRE 807.
B. Confrontation Clause and Forfeiture by Wrongdoing
1. Standard of Review and Applicable Law
¶ 36 We review de novo a trial court’s ruling on whether a
confrontation claim is barred under the forfeiture by wrongdoing
doctrine. Vasquez v. People, 173 P.3d 1099, 1103 (Colo. 2007). We
review for clear error the court’s factual findings made at the
18
forfeiture hearing, and we will not disturb those findings unless
they are clearly erroneous. Id. at 1105. A finding is clearly
erroneous if it has no support in the record. People v. Alaniz,
2016
COA 101, ¶ 40.
¶ 37 We review a trial court’s evidentiary rulings for an abuse of
discretion. See People v. McFee,
2016 COA 97, ¶ 17. A court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it is based on an erroneous
understanding or application of the law.
Id.
¶ 38 A defendant forfeits his right to confront a witness at any
proceeding in which the witness’s statements are otherwise
admissible where “a court finds that (1) the witness is unavailable;
(2) the defendant was involved in, or responsible for, procuring the
unavailability of the witness; and (3) the defendant acted with the
intent to deprive the criminal justice system of evidence.” Vasquez,
173 P.3d at 1103-04; see also People v. Moreno,
160 P.3d 242, 247
(Colo. 2007). The prosecution must prove, by a preponderance of
the evidence, the elements of forfeiture by wrongdoing. Vasquez,
173 P.3d at 1105. Any forfeiture applies to confrontation rights
under the Federal and Colorado Constitutions.
Id. at 1101.
19
2. Analysis
¶ 39 We conclude that the trial court applied the proper forfeiture
test, weighing each of the three factors and assessing them in light
of the proper preponderance burden. Vasquez, 173 P.3d at 1104-
05.
¶ 40 First, the parties do not dispute, and we conclude the record
sufficiently shows, that Walker was unavailable. Jackson’s sole
related argument is that the prosecution did not prove he directly
caused Walker’s unavailability. He relies on the contents of
Walker’s letter, which he argues reflects Walker’s voluntary decision
not to testify and refers to no threats associated with testifying. He
further argues that Giles v. California,
554 U.S. 353 (2008), decided
after his trial, limits the scope of the forfeiture by wrongdoing
doctrine to circumstances where a defendant’s sole purpose for
silencing a witness is to prevent the witness from testifying. Thus,
he argues, even if there was some evidence that he wished Walker
would not testify, the prosecution needed to prove Jackson had a
specific intent to silence Walker. Courts in other jurisdictions,
however, have explicitly rejected this interpretation of Giles. See,
e.g., United States v. Jackson,
706 F.3d 264, 268 (4th Cir. 2013)
20
(“The [Giles] Court made no mention of any requirement that the
defendant’s desire to silence the witness be the sole or primary
motivation for his misconduct.”); People v. Banos, 100 Cal. Rptr. 3d
476, 493 (Cal. Ct. App. 2009) (“[N]othing in Crawford, Davis, Giles I
or Giles II suggests that the defendant’s sole purpose in killing the
victim must be to stop the victim from cooperating with authorities
or testifying against the defendant. It strikes us as illogical and
inconsistent with the equitable nature of the doctrine to hold that a
defendant who otherwise would forfeit confrontation rights by his
wrongdoing . . . suddenly regains those confrontation rights if he
can demonstrate another evil motive for his conduct.”); State v.
Supanchick,
263 P.3d 378, 383 (Or. Ct. App. 2011) (“[T]he Court’s
opinion in Giles does not suggest that [a defendant’s] sole or even
primary purpose in making the victim unavailable must have been
to prevent the victim from reporting defendant to the authorities or
testifying against him.”), aff’d,
323 P.3d 231 (Or. 2014). We agree
with these courts and conclude that our supreme court’s decision
in Vasquez supports this view.
¶ 41 In Vasquez,
173 P.3d at 1103, the defendant killed his wife
during the pendency of other criminal proceedings. He argued that
21
the prosecution was required to prove his intent to silence her
testimony in each case separately, and that no intent evidence
existed for the homicide case. Our supreme court rejected this
narrow interpretation of the intent requirement and held that
evidence of a defendant’s interference with a witness can work a
forfeiture of the defendant’s confrontation rights in all proceedings
in which the witness’s statements are admissible. Id. Consistent
with this holding, we conclude that Jackson’s communications to
Walker, through other members of Sicc Made, about whether he
planned to “take the stand” and to contact the defense investigator
to “recant” constitute sufficient evidence to establish his
interference with Walker’s testimony by a preponderance of the
evidence. Moreover, the existence of other reasons for Walker’s
unavailability (as stated in his letter) does not alter our conclusion.
See
id. at 1104-05 (“[P]reventing the witness’s testimony does not
have to be the defendant’s sole motivation, but need be only one
reason for the defendant’s actions.”).
¶ 42 As with the interference factor of Vasquez, the record
sufficiently supports the trial court’s factual findings that Jackson
contacted others with the intent of depriving the court of key
22
evidence. Jackson described Walker as a “star witness” for the
prosecution, and he said in one phone call that Walker “is their only
witness against me, pretty much.” These statements show that
Jackson knew Walker possessed damaging evidence (irrespective of
its truth). And, Jackson’s request that Walker contact the defense
investigator to “recant” evidences his intent to remove this
damaging evidence from the trial.
¶ 43 We are not persuaded that Moreno, 160 P.3d 242 , requires a
different result. There, the child victim was medically unavailable
to testify due to the criminal conduct charged, so the trial court
admitted the child’s videotaped interview over the defendant’s
objection. The supreme court reversed, holding that a defendant
does not forfeit his right to confrontation if the only evidence of
wrongdoing is the offense itself, apart from any design or attempt to
subvert the trial testimony.
Id. at 246.
¶ 44 Unlike in Moreno, Walker’s refusal to testify had nothing to do
with the criminal conduct charged, but instead was motivated in
part by Jackson’s communications through Sicc Made
intermediaries asking him to recant. As the forfeiture hearing
unfolded, the trial court, as fact finder, was in the best position to
23
weigh the credibility of the witnesses and evidence presented, and
we defer to its findings because the record supports them. See
People v. Friend, 2014 COA 123M, ¶ 8 (trial courts are in the best
position to determine questions of fact) (cert. granted in part Feb. 8,
2016).
¶ 45 Finally, because we affirm the trial court’s ruling that Jackson
forfeited his right to confront Walker, we need not address his
argument that the introduction of Walker’s statements to law
enforcement officials infringed his right to confront Walker. See
Vasquez,
173 P.3d at 1103.
C. Hearsay
¶ 46 Jackson contends that the trial court erroneously admitted
Walker’s out-of-court statements under the residual hearsay
exception, CRE 807. We disagree.
1. Standard of Review and Applicable Law
¶ 47 We review the trial court’s evidentiary decisions, including
whether the residual hearsay exception applies, for an abuse of
discretion. Vasquez, 173 P.3d at 1106 n.7. A court abuses its
discretion when its decision is manifestly arbitrary, unfair, or
24
unreasonable, or contrary to law. See People v. Hoskins, 2014 CO
70, ¶ 17.
¶ 48 CRE 807 provides that a statement not specifically covered by
the other hearsay exceptions “but having equivalent circumstantial
guarantees of trustworthiness” is not excluded by the prohibition
against hearsay if certain requirements are met. A statement may
be admitted under the rule if (1) it is offered as evidence of a
material fact; (2) it is more probative on the point for which it is
offered than any other evidence that could be reasonably procured;
(3) the general purposes of the rules of evidence and the interests of
justice are best served by its admission; and (4) the adverse party
had adequate notice in advance of trial of the intention to offer it
into evidence. People v. Fuller,
788 P.2d 741, 744 (Colo. 1990);
People v. Shifrin,
2014 COA 14, ¶ 59.
¶ 49 “In considering the trustworthiness of a statement, courts
should examine the nature and character of the statement, the
relationship of the parties, the probable motivation of the declarant
in making the statement, and the circumstances under which the
statement was made.” People v. Jensen,
55 P.3d 135, 139 (Colo.
App. 2001); see also Fuller,
788 P.2d at 745. The proponent must
25
establish the trustworthiness of the statement by a preponderance
of the evidence. People v. Preciado-Flores, 66 P.3d 155, 164 (Colo.
App. 2002).
2. Analysis
¶ 50 We discern no abuse of discretion in the court’s admission of
Walker’s hearsay statements under CRE 807 and conclude that the
trial court’s findings, to which we defer, are supported by the
record. People v. Brown, 2014 COA 155M-2, ¶ 29 (“[W]e defer to the
trial court’s findings of fact which are supported by the record.”).
¶ 51 First, Walker’s statements were evidence of a material fact —
the circumstances surrounding the shooting and Jackson’s
involvement in it. Because Walker was present, heard the shots
fired, and heard Jackson’s inculpatory statements immediately
following the shooting, and because Walker’s statements were
consistent with the physical evidence, his statements were more
probative of what occurred at the apartment complex than the other
circumstantial evidence that was available. Further, the jury’s
truth-finding function, and thereby the interests of justice, are
better served by firsthand accounts. See McFee, ¶ 76 (“Lay opinion
testimony is permitted . . . because ‘it has the effect of describing
26
something that the jurors could not otherwise experience for
themselves by drawing upon the witness’s sensory and experiential
observations that were made as a firsthand witness to a particular
event.’” (quoting United States v. Freeman, 730 F.3d 590, 595 (6th
Cir. 2013))). Moreover, the undisputed record shows that the
prosecution provided advance notice of its intent to admit Walker’s
hearsay statements.
¶ 52 Concerning indicia of reliability, the trial court found “from a
lay perspective admitting to things that seem to be candid and true,
and then . . . not [being] able to remember certain things based on
his position or passage of time . . . has an indicia of reliability.” It
also found that Walker had no more motivation to implicate
Jackson than any of the other individuals involved because Walker
and Jackson were not close, although they knew each other. And,
it found that the circumstances of the interview — specifically, that
the prosecutor was making decisions about whom to charge —
provided reliability to Walker’s statements.
¶ 53 We are not persuaded by Jackson’s argument that the trial
court gave insufficient weight to Walker’s motivation to avoid first
degree murder charges himself, and “downplayed this rather
27
important factor.” The record contradicts this assertion and shows
that the court carefully analyzed each statement to determine its
trustworthiness. The court specifically considered the impact of
Walker’s motive:
[T]he question as to his motive is always going
to be suspect, but I think that internally within
the statement he circles back around in terms
of time, place, location, he corroborates
statements that he had made earlier, he came
back to the same statements, he identified
individuals that he was familiar with, and he
also stated when he was not able to identify
individuals. He identified the position of his
vehicle, what his observations were, what he
saw, what he heard, the fact that gunshots
had rung out and that they left immediately
after [Jackson] told him that this guy’s house
had been shot up and he describes the
direction of travel. So based on the totality of
circumstances, I will allow this evidence to
come in.
¶ 54 The court acknowledged that while Walker may have been
trying to avoid culpability, he nevertheless inculpated himself as a
complicitor by admitting that he was at the scene, heard gunshots,
heard Jackson’s inculpatory statements, and thus was a
participant.
¶ 55 For the same reasons, we reject Jackson’s argument that the
court improperly distinguished this case from Bernal v. People, 44
28
P.3d 184 (Colo. 2002), where our supreme court held that a
co-conspirator’s statements minimizing his own blame and
maximizing others’ did not possess the requisite “particularized
guarantees of trustworthiness” to be admissible under CRE
804(b)(3).
Id. at 197, 200. To be sure, Walker’s statements
minimized his participation in the actual murder; however, he
admitted participating in the planning, driving to the apartment
complex, and hearing gunshots. And, as found by the court,
nothing in the record shows why he would implicate Jackson over
the other participants.
¶ 56 Finally, the court noted that unlike in Bernal, where the
witness made numerous inconsistent statements, Walker’s
statements remained consistent, even when the investigator moved
on and then returned to earlier questions. True enough, Walker
could not recall a number of details; however, unlike the
circumstances in Bernal, the investigator never caught Walker in
lies. See
id. at 200 (“Even Grose, a detective and witness for the
prosecution, recognized the untrustworthiness of [the
codefendant’s] statement. . . . Grose responded to the court’s
question of why [the codefendant] was upset during the interviews
29
with the following explanation: ‘Because he was caught in several
lies, and he was being confused as to time, where he was at. And
he was getting frustrated because I was going back over his
statements and he was changing his statements, and he was
confused.”).
¶ 57 Accordingly, we conclude that the decision to admit Walker’s
statements under CRE 807 was not manifestly unreasonable,
arbitrary, or unfair.
IV. Complicity Instruction
¶ 58 Jackson next contends that the complicity instruction was
erroneous for three reasons. First, he asserts that the jury should
have been required to find that he was aware the shooter was acting
after deliberation and with the conscious objective to kill the victim.
He also argues that a separate complicity instruction should have
been given for each offense because each offense contained a
different mens rea. Finally, he argues that the tendered complicity
instruction allowed the jury to convict him of first degree murder
after deliberation with a lesser mens rea than that possessed by the
shooter. Because we are bound by our supreme court’s decision in
30
People v. Childress, 2015 CO 65M, we conclude the complicity
instruction was proper.
A. Additional Facts
¶ 59 Jackson tendered the following complicity instruction:
A person is guilty of an offense committed by
another person if he is a complicitor. To be
guilty as a complicitor, the following must be
established beyond a reasonable doubt:
1. The crime must have been committed,
2. another person must have committed all or
part of the crime,
3. the defendant must have had knowledge
that the other person intended to commit all or
part of the crime,
4. the defendant be actually aware of or know
that the principal was acting after deliberation,
and with the conscious objective of causing the
death of another,
5. the defendant must have had the intent to
promote or facilitate the commission of the
crime,
6. the defendant must have aided, abetted,
advised, or encouraged the other person(s) in
the commission or planning of the crime.
¶ 60 The tendered instruction included a source note at the bottom
that read as follows:
31
This instruction is not supported by People v.
Childress, --- P.3d ---, 2015 WL 7423068
(Colo. 2015). However, this proposed
instruction is being submitted in support of D-
30 titled, “Motion to Find C.R.S. 1[8]-1-603
Unconstitutional on its Face And as Applied,
or in the Alternative, Motion for an Alternative
Jury Instruction.”
¶ 61 During the instruction conference, defense counsel argued,
I understand the Court had denied the motion
[to find section 18-1-603 unconstitutional], but
I think the Court said I could still follow up
with the jury instruction to create a record
that we were seeking to introduce it. But I
wanted to obviously note that this was not
supported by the [Childress] case. It might
have been supported by the dissent, but that
has already been ruled upon by the Court.
¶ 62 The court denied Jackson’s tendered instruction, ruling that
(1) the fourth paragraph was subsumed within the third paragraph
and (2) the fourth paragraph only considered the mens rea for first
degree murder while the instruction applied to all charges.
¶ 63 The court instructed the jury as follows:
A person is guilty of an offense committed by
another person if he is a complicitor. To be
guilty as a complicitor, the following must be
established beyond a reasonable doubt:
1. The crime must have been committed,
2. another person must have committed all or
part of the crime,
32
3. the defendant must have had knowledge
that the other person intended to commit all or
part of the crime,
4. the defendant must have had the intent to
promote or facilitate the commission of the
crime,
5. the defendant must have aided, abetted,
advised, or encouraged the other person(s) in
the commission or planning of the crime.
B. Standard of Review and Applicable Law
¶ 64 Trial courts have a duty to correctly instruct the jury on all
matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001).
We review de novo whether jury instructions accurately reflect the
law. Riley v. People,
266 P.3d 1089, 1092 (Colo. 2011). Generally,
instructions that accurately track the language of applicable
statutes and pattern instructions are sufficient. People v. Gallegos,
260 P.3d 15, 26 (Colo. App. 2010). However, “pattern instructions
are not law, not authoritative, and not binding on this court, but
they are grounded in our longstanding practice and are regularly
consulted to determine whether jury instructions are erroneous.”
People v. Flockhart,
2013 CO 42, ¶ 12.
¶ 65 Under the complicity statute, “[a] person is legally accountable
as [a] principal for the behavior of another constituting a criminal
33
offense if, with the intent to promote or facilitate the commission of
the offense, he or she aids, abets, advises, or encourages the other
person in planning or committing the offense.” § 18-1-603, C.R.S.
2017. Section 18-1-603 therefore dictates
that a person is legally accountable as a
principal for the behavior of another
constituting a criminal offense if he aids,
abets, advises, or encourages the other person
in planning or committing that offense, and he
does so with: (1) the intent to aid, abet, advise,
or encourage the other person in his criminal
act or conduct, and (2) an awareness of
circumstances attending the act or conduct he
seeks to further, including a required mental
state, if any, that are necessary for commission
of the offense in question.
Childress, ¶ 34.
With regard to causing a particular result that
is an element of the offense in question, rather
than mandating that a complicitor himself act
with the kind of culpability otherwise required
for commission of the offense, complicitor
liability as defined by statute in this
jurisdiction mandates that the complicitor act
with an awareness the principal is or would be
acting with that required mental state.
Id. at ¶ 29 (emphasis added). “[C]ircumstances attending the act or
conduct,” refers to “those elements of the offense describing the
prohibited act itself and the circumstances surrounding its
34
commission, including a required mental state, if any.” Id.
(emphasis added).
C. Application
¶ 66 We conclude that the tendered instruction properly required
the jury to find that Jackson knew that the shooter intended to
“commit all or part of the crime.” A separate jury instruction
defined first degree murder after deliberation:
The elements of the crime of Murder in the
First Degree (After Deliberation) are:
1. That the defendant,
2. in the State of Colorado, on or about
December 26, 2011,
3. after deliberation, and
4. with the intent,
5. to cause the death of a person other than
himself,
6. caused the death of that person or of
another person.
“[A]fter deliberation” and “with the intent” “to cause the death of a
person” are separate elements of “the crime.” Thus, this
instruction, when read with the complicity instruction, accurately
required the jury to find that Jackson was aware that the shooter
35
acted after deliberation and with the intent to cause the death of
the victim. Accordingly, we perceive no error in the complicity
instruction.
¶ 67 Next, we address, and reject, Jackson’s contention that the
court should have tailored the complicity instruction to each offense
by providing separate complicity instructions for each offense.
Because Jackson makes this “separate instruction” argument for
the first time on appeal, we review his argument for plain error.
People v. Miller, 113 P.3d 743, 750 (Colo. 2005).
¶ 68 First, Jackson does not cite, nor are we aware of, any
authority requiring a separate complicity instruction for each
offense to which complicity applies. Thus, the alleged error could
not have been “obvious.” See People v. Pollard,
2013 COA 31M, ¶
40 (To be obvious, an error “must contravene (1) a clear statutory
command; (2) a well-settled legal principle; or ([3]) Colorado case
law.”) (citations omitted). Additionally, the court instructed the jury
that each count charged “a separate and distinct offense” and that
“the evidence and the law applicable to each count had to be
considered separately, uninfluenced by [the jury’s] decision as to
any other count.” Because we presume the jury followed the court’s
36
instructions, we similarly presume that it considered and applied
the complicity instruction to each count separately. People v.
Moody, 676 P.2d 691, 697 (Colo. 1984). Therefore, no error
occurred.
¶ 69 Finally, we conclude that Jackson preserved his “lesser mental
state” argument by arguing the unconstitutionality of section
18-1-603 both facially and as applied (though he does not challenge
the trial court’s ruling denying those claims). However, we reject
his argument for the reasons described above and because we are
bound by Childress, which holds,
with regard to crimes of specific intent[,] . . .
the mental state requirements of
complicity . . . arguably require a less culpable
state of mind on the part of the complicitor
than of the principal; and as a practical
matter, any difference between having both the
knowledge that the principal is acting with a
conscious objective to cause a prohibited
result and the design or desire to promote or
facilitate that act, on the one hand, and
actually having the conscious objective that
the prohibited result occur, on the other, is
largely academic. In any event, it could hardly
be said that a complicitor’s act of aiding,
abetting, advising, or encouraging another
person with both an awareness that the other
person is engaging in behavior, the conscious
objective of which is to cause a prohibited
result, and a design that he do so, is any less
37
culpable than having that conscious objective
himself.
Childress, ¶ 32. Indeed, Jackson conceded as much in the source
note on his tendered instruction and in his instruction conference
argument. Accordingly, we conclude no error occurred.
V. Double Jeopardy and Multiplicity
¶ 70 Jackson last contends that the court erred in imposing two
convictions and consecutive sentences for his attempted murder
convictions. He asks us to vacate one of the convictions and
sentences. The People concede that the sentences for first degree
murder and attempted first degree murder after deliberation should
run concurrently, but argue that two convictions are justified
because these convictions name different victims (Y.M. and E.O.).
We agree with Jackson. To maximize the jury’s verdict, we vacate
his attempted first degree murder after deliberation conviction and
sentence (because it is a lesser included offense of first degree
murder after deliberation) and remand for correction of the
mittimus.
38
A. Standard of Review and Relevant Law
¶ 71 We review unpreserved double jeopardy issues for plain error.
See Reyna-Abarca v. People, 2017 CO 15, ¶ 47 (“[W]e conclude that
an appellate court may review an unpreserved double jeopardy
claim and that the court should ordinarily review such a claim for
plain error.”). Plain error is ‘“obvious and substantial,’ and must
have ‘so undermined the fundamental fairness of the [proceeding]
so as to cast serious doubt on the reliability of the judgment.’”
People v. Davis,
2015 CO 36M, ¶ 32 (citations omitted).
¶ 72 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused against being twice
placed in jeopardy for the same crime. U.S. Const. amend. V; Colo.
Const. art. II, § 18; Woellhaf v. People,
105 P.3d 209, 214 (Colo.
2005). As pertinent here, the Double Jeopardy Clauses protect not
only against a second trial for the same offense, but also “against
multiple punishments for the same offense.” Woellhaf,
105 P.3d at
214 (quoting Whalen v. United States,
445 U.S. 684, 688 (1980)).
¶ 73 Additionally, a defendant may not be convicted of an offense
that is included in another offense. § 18-1-408(1), C.R.S. 2017.
One offense is a lesser included offense of another offense “if the
39
elements of the lesser offense are a subset of the elements of the
greater offense, such that the lesser offense contains only elements
that are also included in the elements of the greater offense.”
Reyna-Abarca, ¶ 64. The lesser offense and greater offense may
only stand “if the offenses were committed by distinctly different
conduct.” People v. Rock, 2017 CO 84, ¶ 17. Thus, if the same
conduct led to the two convictions and establishing the greater
offense establishes “any set of elements sufficient for commission of
that lesser offense,” then the lesser offense is included. Id. at
¶¶ 16-17.
¶ 74 To determine whether an offense is a lesser included offense,
we examine the statutes at issue. In construing a statute, we must
determine and effectuate the intent of the General Assembly.
Whenever possible, we discern such intent from the plain and
ordinary meaning of the statutory language. Woellhaf,
105 P.3d at
215.
¶ 75 Section 18-3-102, C.R.S. 2017, provides as follows:
(1) A person commits the crime of murder in
the first degree if:
(a) After deliberation and with the intent to
cause the death of a person other than
40
himself, he causes the death of that person or
of another person; or
....
(d) Under circumstances evidencing an
attitude of universal malice manifesting
extreme indifference to the value of human life
generally, he knowingly engages in conduct
which creates a grave risk of death to a person,
or persons, other than himself, and thereby
causes the death of another . . . .
(Emphasis added.)
¶ 76 Attempted first degree murder requires that the defendant
engage in conduct constituting a substantial step toward the
commission of first degree murder, as defined in section 18-3-
102(1)(a) and (d). See § 18-2-101(1), C.R.S. 2017 (“A person
commits criminal attempt if, acting with the kind of culpability
otherwise required for commission of an offense, he engages in
conduct constituting a substantial step toward the commission of
the offense.”).
¶ 77 Finally, section 18-1-408 governs the prosecution of multiple
counts for the same act. It mandates that a defendant
may not be convicted of more than one offense
if:
(a) One offense is included in the other . . . ; or
41
(b) One offense consists only of an attempt to
commit the other; or
(c) Inconsistent findings of fact are required to
establish the commission of the offense; or
(d) The offenses differ only in that one is
defined to prohibit a designated kind of
conduct generally and the other to prohibit a
specific instance of such conduct; or
(e) The offense is defined as a continuing
course of conduct and the defendant’s course
of conduct was uninterrupted, unless the law
provides that specific periods or instances of
such conduct constitute separate offenses.
§ 18-1-408(1).
¶ 78 If a defendant is convicted and receives multiple punishments
for the same offense, the convictions merge. See People v. Rhea,
2014 COA 60, ¶ 17 (“Merger has the same effect as vacating one of
the multiplicitous sentences.”).
B. Discussion
¶ 79 The prosecution charged Jackson with first degree murder
after deliberation for killing Y.M. It also charged him with two
counts of attempted first degree murder as to E.O. under different
theories — after deliberation and extreme indifference. During
closing arguments, the prosecutor urged the jury to convict
Jackson of the two attempted murder counts based on the five
42
shots fired into E.O.’s apartment. He argued that Jackson’s
“substantial step” toward murdering E.O. was driving to E.O.’s
apartment. On appeal, however, the People abandon this argument
and instead assert that the shooting of Y.M. encompasses two
separate crimes — first degree murder after deliberation and
attempt — and that two convictions can be entered because the
counts name separate victims (Y.M. for murder and E.O. for
attempted murder).2
¶ 80 We first address and reject the prosecutor’s argument in
closing that was challenged by Jackson in this appeal.
¶ 81 Under that argument, both attempts were based on identical
evidence — the five shots fired into E.O.’s apartment. Although we
recognize our duty to maximize the jury’s verdict, see People v.
Delgado, 2016 COA 174, ¶ 29 (cert. granted Dec. 11, 2017), two
convictions for attempted first degree murder based upon the same
evidence and the same victim cannot stand. See Candelaria v.
People,
148 P.3d 178, 180-81 (Colo. 2006) (“We therefore found that
2The People may defend the judgment on any grounds supported
by the record. See People v. Aarness,
150 P.3d 1271, 1277 (Colo.
2006).
43
the legislature intended to permit the same defendant to suffer only
one conviction of murder for the killing of any single victim. We
also considered it important, however, that the prosecution be
permitted to charge multiple theories of first degree murder in
separate counts . . . .”) (citation omitted); see also § 18-1-408(1)(e)
(One conviction must be vacated when “[t]he offense is defined as a
continuing course of conduct and the defendant’s course of conduct
was uninterrupted, unless the law provides that specific periods or
instances of such conduct constitute separate offenses.”).
¶ 82 Contrary to the prosecutor’s argument, the trial evidence does
not support “distinct and separate offenses” for each shot fired.
Quintano v. People, 105 P.3d 585, 592 (Colo. 2005). To determine
whether each individual shot constitutes a separate offense, we
examine whether the conduct occurred at different locations, was
the product of new volitional departures, was separated by time, or
was separated by intervening events. Woellhaf,
105 P.3d at 214;
Quintano,
105 P.3d at 591. Because the evidence established that
the five shots were fired in rapid succession, at the same location,
not separated by time or any intervening events, and without a new
44
volitional departure, we conclude that identical evidence supports
both attempted murder convictions and that only one may stand.
¶ 83 In response to the People’s new argument, Jackson contends
that we must still vacate one of the attempted murder convictions
because attempted murder after deliberation is a lesser included
offense of first degree murder after deliberation. The People
contend that because the counts named different victims, section
18-1-408(3) (mandatory concurrent sentences for convictions
supported by identical evidence) only requires the court to impose
concurrent sentences to avoid a double jeopardy violation, but does
not require that the conviction be vacated. This presents a novel
issue not previously decided by a Colorado appellate court — when
the greater and the lesser first degree murder offenses name
different victims under the same theory, do principles of double
jeopardy require one to be vacated? We answer that question “yes,”
based on the plain language of the first degree murder statute,
which incorporates the doctrine of transferred intent, and conclude
that double jeopardy requires that we vacate Jackson’s conviction
for the lesser included offense of attempted first degree murder after
deliberation.
45
¶ 84 The facts of this case implicate the doctrine of transferred
intent because the victim killed was not the perpetrators’ intended
target. As described in People v. Hunt, 2016 COA 93, the doctrine
of transferred intent
is a legal fiction that is used to hold a
defendant criminally liable to the full extent of
his or her criminal culpability. Traditionally,
the transferred intent theory has been applied
in so-called “bad aim” situations where a
defendant, while intending to kill one person,
accidentally kills an innocent bystander or
another unintended victim. . . . Thus, the
perpetrator’s intent to kill or injure a specific
victim transfers to the unintended victim.
. . . The purpose of the doctrine is to impose
criminal liability upon an actor when he or she
intends to commit a criminal act, and “the
actual result differs from the result designed or
contemplated only in that a different person or
property was injured or affected.”
Id. at ¶ 24 (citations omitted).
¶ 85 The Hunt division recognized that the first degree murder
statute “incorporates the doctrine of transferred intent and holds a
principal liable for the death of an unintended victim” by its plain
language. Id. at ¶ 21 (quoting People v. Candelaria, 107 P.3d 1080,
1091 (Colo. App. 2004)). Indeed, as relevant here, the first degree
murder statute requires that the defendant “cause[] the death of
46
that person or of another person.” § 18-3-102(1)(a) (emphasis
added).
¶ 86 We recognize that one commentator suggests that the doctrine
of transferred intent is limited to “bad aim” cases and does not
apply to “mistaken identity” cases such as this. See 1 Wayne R.
LaFave, Substantive Criminal Law § 6.4(d), at 475-78 (2d ed. 2003);
see also Martinez v. State, 844 S.W.2d 279, 282 (Tex. App. 1992)
(limiting the transferred intent doctrine to bad aim cases).
¶ 87 However, others take a broader view finding that the purpose
of the doctrine is to impose criminal liability on a person who
commits a criminal act and “the actual result differs from the result
designed or contemplated only in that a different person or property
was injured or affected” without limiting it to bad aim cases. Model
Penal Code § 2.03(2)(a) cmt. 3 (Am. Law Inst. 1985); see also State
v. Austin,
788 N.W.2d 788, 793 (Minn. Ct. App. 2010) (applying the
doctrine to mistaken identity facts and finding “[t]he doctrine
applies when a defendant claims that ‘bad aim’ or a mistaken
identity resulted in the crime affecting a victim other than the
intended victim”). Indeed, one commentator has suggested that the
need for the doctrine can be avoided altogether by incorporating the
47
doctrine into the statutory language. See 1 Paul H. Robinson,
Criminal Law Defenses § 89(c) (1984) (describing how a homicide
statute requiring an intent to cause the death of a person or
another person includes the doctrine of transferred intent).
¶ 88 Because our General Assembly has chosen to include the
doctrine of transferred intent within the language of the first degree
murder statute, we are persuaded that the doctrine is implicated by
the facts of this case and provides a useful framework for resolving
the legal question presented, even though it involves mistaken
identity rather than bad aim. We find support for our view in an
old supreme court case where the court described the nearly
universal rule that “one who kills another, mistaking him for a third
person whom he intended to kill, is guilty or innocent of the offense
charged the same as if the fatal act had killed the person intended
to be killed.” Ryan v. People, 50 Colo. 99, 102,
114 P. 306, 308
(1911) (quoting Francis Wharton, The Law of Homicide § 359 (Frank
H. Bowlby ed., 3d ed.1907)).
¶ 89 Here, the undisputed evidence shows that the shooter and
Jackson intended to kill E.O. and mistakenly killed Y.M., believing
him to be E.O. Under the doctrine of transferred intent, Jackson’s
48
specific intent to kill E.O. transferred to Y.M. and made him
criminally liable for Y.M.’s death. See State v. Fekete, 901 P.2d 708,
714 (N.M. 1995) (finding that the perpetrator’s intent to kill or
injure a specific victim transfers to the unintended victim). By
proving the first degree murder of Y.M. under this theory, the
prosecution necessarily proved that Jackson intended and
attempted to kill E.O. Therefore, the attempted murder of E.O. after
deliberation is a lesser included offense of the murder after
deliberation of Y.M. Rock, ¶¶ 16-17 (proving elements of the greater
offense necessarily proves all the elements of the lesser offense); see
also Crim. P. 31(c) (“The defendant may be found guilty of an
offense necessarily included in the offense charged or of an attempt
to commit either the offense charged or an offense necessarily
included therein if the attempt is an offense.”). And, because
double jeopardy principles and section 18-1-408(1)(b) preclude
convictions for both the lesser and greater offense, we conclude the
error was obvious, substantial, and undermined the fairness of the
proceeding. Reyna-Abarca, ¶ 81 (“[S]uch a violation requires a
remedy.”).
49
¶ 90 Accordingly, we vacate Jackson’s attempted first degree
murder after deliberation conviction.
VI. Conclusion
¶ 91 The judgment is affirmed as to the convictions of first degree
murder after deliberation, attempted first degree murder with
extreme indifference, conspiracy to commit first degree murder, and
accessory. The judgment for attempted first degree murder after
deliberation is vacated, and the case is remanded for correction of
the mittimus. The mittimus should be amended to delete the
conviction and sentence for attempted first degree murder after
deliberation.
JUDGE TERRY and JUDGE NAVARRO concur.
50
