People v. Jackson
2018 COA 79
Colo. Ct. App.2018Background
- Defendant Brandon D. Jackson was tried for first-degree murder (after deliberation), two counts of attempted first-degree murder (after deliberation and with extreme indifference), conspiracy, and accessory relating to a gang retaliation shooting in December 2011 that killed Y.M. (mistaken identity for intended target E.O.).
- At the first trial, the court declared a mistrial after defense cross-examination of Jackson’s ex-wife elicited undisclosed alibi testimony she had earlier provided to defense counsel but not to the prosecution.
- At retrial, the prosecution admitted out-of-court statements by uncharged co-participant Tyrel Walker (who refused to testify) under the forfeiture-by-wrongdoing doctrine and the residual hearsay exception (CRE 807).
- Jackson challenged (1) the mistrial (double jeopardy), (2) admission of Walker’s hearsay statements, (3) the court’s refusal to give his proposed complicity instruction, and (4) being separately convicted/sentenced for attempted murder (intent to kill E.O.) and murder (death of Y.M.).
- The Court of Appeals affirmed the mistrial ruling, upheld admission of Walker’s statements and the complicity instruction, but vacated the attempted murder (after deliberation) conviction as a lesser included offense of murder and remanded to correct the mittimus.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Jackson) | Held |
|---|---|---|---|
| 1) Mistrial / Double jeopardy | Mistrial justified because defense elicited undisclosed alibi, prejudicing prosecution; retrial permitted. | Court erred to declare mistrial without considering less drastic remedies; retrial barred by double jeopardy. | Affirmed: court did not abuse discretion; defense misconduct and manifest necessity justified mistrial. |
| 2) Admission of Walker’s out-of-court statements (Confrontation/Hearsay) | Walker unavailable; Jackson caused Walker’s refusal to testify (via jail calls/intermediaries), forfeiting confrontation right; statements also admissible under CRE 807. | Prosecution failed to show Jackson intended to prevent Walker’s testimony; statements unreliable hearsay. | Affirmed: forfeiture proven by preponderance; CRE 807 admission within trial court discretion. |
| 3) Complicity jury instruction | Current statutory/pattern instruction adequate; no separate instruction needed for each offense. | Requested explicit instruction requiring complicitor’s awareness that principal acted after deliberation with conscious objective to kill. | Affirmed: instruction, read with murder instruction, required awareness of principal’s mens rea; Childress controls. |
| 4) Multiplicity / Double jeopardy — attempted murder vs. murder | People ultimately argued convictions may stand because they name different victims (E.O. for attempt, Y.M. for murder); concurrent sentences suffice. | Attempted murder (target E.O.) is a lesser included offense of murder (Y.M.) under transferred intent; vacate attempt. | Reverse in part: vacated attempted-murder-after-deliberation conviction (lesser included of murder under transferred intent); remand to correct mittimus. |
Key Cases Cited
- Vasquez v. People, 173 P.3d 1099 (Colo. 2007) (forfeiture-by-wrongdoing requires showing defendant caused unavailability with intent to deprive system of testimony; proven by preponderance)
- Bernal v. People, 44 P.3d 184 (Colo. 2002) (limitations on admissibility of co-conspirator statements lacking particularized guarantees of trustworthiness)
- Giles v. California, 554 U.S. 353 (2008) (discusses intent element in forfeiture doctrine; Court of Appeals interprets alongside Vasquez)
- Arizona v. Washington, 434 U.S. 497 (1978) (mistrial principles; public interest in fair trial can outweigh defendant’s interest in concluding trial before first jury)
- Candelaria v. People, 148 P.3d 178 (Colo. 2006) (one murder conviction per victim; multiple theories allowable but convictions/punishments must avoid multiplicity)