People v. Jackson, Court of Appeals No. 16CA0854

• Decision Date: 31 May 2018
• Docket Number: Court of Appeals No. 16CA0854
• Citation: 474 P.3d 60
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brandon D. JACKSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

474 P.3d 60

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Brandon D. JACKSON, Defendant-Appellant.

Court of Appeals No. 16CA0854

Colorado Court of Appeals, Division VI.

Announced May 31, 2018

Rehearing Denied July 26, 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

Opinion by JUDGE FREYRE

¶ 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.

¶ 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 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...