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People v. Jackson

Court of Appeals of Colorado, Sixth Division

May 31, 2018

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Brandon D. JACKSON, Defendant-Appellant.

         Rehearing Denied July 26, 2018.

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          Arapahoe County District Court No. 14CR1968 Honorable Frederick T. Martinez, Judge.

          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.


         FREYRE, JUDGE.

         ¶ 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, 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.

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          ¶ 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.

         ¶ 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 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.

         ¶ 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

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spent the night of December 25 with her. Defense counsel asked her the following:

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."

         ¶ 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.

         ¶ 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 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

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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 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 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 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

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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).

         ¶ 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 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 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, 98 S.Ct. 824, 54 L.Ed.2d 717 (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, 98 S.Ct. 824 (footnotes omitted) (quoting Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 93 L.Ed. 974 (1949)).

         ¶ 29 Accordingly, we affirm the court's ruling declaring a mistrial.

         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

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(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 ...

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