People v. Jackson

• Decision Date: 21 September 2020
• Docket Number: Supreme Court Case No. 18SC607
• Citation: 472 P.3d 553
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Brandon JACKSON, Respondent
• Court: Colorado Supreme Court

472 P.3d 553

The PEOPLE of the State of Colorado, Petitioner

v.Brandon JACKSON, Respondent

Supreme Court Case No. 18SC607

Supreme Court of Colorado.

September 21, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Samler & Whitson, P.C., Eric A. Samler, Hollis A. Whitson, Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 After deliberation and with the intent to kill, A aims at and shoots someone he mistakenly believes is B but who turns out to be C , and C dies from the gunshot wound

. The question that typically arises from this factual scenario is whether A may be convicted of murder in the first degree after deliberation and with intent ("first degree murder") for killing C . Here, no one disputes that the answer to this question is "yes." Where the parties cross swords is on the issue of whether, as the People argue, A may additionally be convicted of criminal attempt to commit murder in the first degree after deliberation and with intent ("attempted first degree murder") for wanting to kill B . A division of the court of appeals correctly rejected the People's position on double jeopardy principles. But in doing so, it relied on the doctrine of transferred intent, a legal fiction that some courts use largely to ensure that a defendant doesn't escape liability in what is widely known as a bad-aim situation (i.e., A aims at and shoots toward B , but misses due to his bad aim and accidentally hits and kills C , an innocent bystander).

¶2 Because Colorado's broad statutory definition of first degree murder encompasses unintended victims and renders the transferred intent doctrine unnecessary, we now disapprove of the doctrine in first degree murder cases. Even if our first degree murder statute didn't make the transferred intent doctrine unnecessary, the doctrine would still be irrelevant here because this is a mistaken-identity case, not a bad-aim case. Unlike a bad-aim case, where A aims at and shoots toward B but misses and kills C (an innocent bystander) by accident , in a mistaken-identity case, A aims at, shoots, and kills C by mistake (A hits his target, mistakenly believing that C is B ). Thus, while a bad-aim case involves two victims (the person the perpetrator aimed at and shot toward and the unintended victim harmed by the bullet), a mistaken-identity case like this one involves only one victim (the person the perpetrator aimed at and shot with the intent to kill, albeit by mistake). It follows that in a mistaken-identity case, there is no need to transfer the perpetrator's intent from one victim to another—the concept of transferred intent is immaterial.

¶3 As relevant here, Brandon Jackson was convicted, as a complicitor, of both first degree murder and attempted first degree murder after his codefendant aimed at, shot, and killed Y.M. under the mistaken belief that Y.M. was E.O. We now hold that the Double Jeopardy Clauses of the federal and state constitutions dictate that Jackson may not stand convicted of both first degree murder and attempted first degree murder because the latter is a lesser included offense of the former—the elements of attempted first degree murder are a subset of the elements of first degree murder, and this particular attempted first degree murder is not factually distinct from this particular first degree murder. Contrary to the People's assertion, the shooter did not attempt to kill E.O. when he aimed at and shot Y.M. Rather, in aiming at and shooting Y.M., the shooter intended and attempted to kill Y.M., the same person he actually killed. That the shooter wanted to kill E.O. and mistakenly believed Y.M. was E.O. is of no moment. Therefore, Jackson's convictions for first degree murder and attempted first degree murder are based on the same criminal conduct and relate to the same victim (Y.M.).

¶4 Accordingly, we ultimately agree with the division that the trial court plainly erred in entering convictions and imposing sentences for both of the offenses in question. But because our rationale differs from the division's, we affirm on other grounds. We remand with instructions to return the case to the trial court to vacate the conviction and sentence for attempted first degree murder.

I. Facts and Procedural History

¶5 The charges brought against Jackson stem from longstanding animosity between two rival gangs: "Sicc Made," which is a subset of the "Crips"; and "Most Hated," which is also known as "Most Hated Gangsters." Jackson is a member and founder of Sicc Made. E.O. is a member of Most Hated.

¶6 In November 2010, members of Most Hated fired gunshots into an apartment where Jackson apparently stayed. No one was injured. A little over a year later, during the late evening of December 23 and early morning of December 24, 2011, E.O. shot Amin El-Howeris, a member of Sicc Made, while at a party. El-Howeris was injured, but survived. Approximately forty-eight hours later, on December 25, Jackson and a handful of fellow Sicc Made members met in an apartment to discuss retaliating against E.O. ("the meeting"). During the meeting, El-Howeris exclaimed, "[L]ook what they did to me," and one of his associates responded, "They mess with one of us, they mess with all of us." As someone passed around a gun with a laser sight, the group discussed shooting E.O. and "finish[ing] him off." The men knew the location of the apartment where E.O. lived and were aware that he drove a gold SUV.

¶7 Jackson and his compatriots decided to go to E.O.’s apartment complex after the meeting. They traveled there in two Ford Explorers, one of which was driven by Jackson. They parked in the parking lot and waited for E.O.’s arrival.

¶8 Y.M., who was not involved with either gang, lived in the same apartment complex as E.O. He returned home from work at 3 a.m. on December 26. Y.M. drove a gold SUV similar to E.O.’s and happened to park near E.O.’s apartment. Believing that Y.M. was E.O., one of Jackson's cohorts got out of the Explorer Jackson had driven to E.O.’s apartment, walked over to Y.M.’s SUV, and shot him twice in the head, killing him instantly. When the shooter realized he had killed the wrong person, he fired numerous shots into E.O.’s apartment. No one was in the apartment at the time.

¶9 A grand jury subsequently indicted Jackson and other Sicc Made members. Jackson was charged with: (1) first degree murder (naming Y.M. as the victim); (2) attempted first degree murder (naming E.O. as the victim); (3) criminal attempt to commit extreme indifference murder (naming E.O. as the victim, apparently based on the shots fired into his apartment after Y.M. was killed);¹ (4) conspiracy to commit first degree murder; and (5) accessory to the crime of first degree murder. Since Jackson was not the shooter, at trial the People relied on a complicity theory of liability and the court instructed the jury accordingly.²

¶10 The jury found Jackson guilty of all five charges. The trial court then sentenced him to life imprisonment without the possibility of parole on count 1, twenty-four years’ imprisonment per count on counts 2, 3, and 4, and six years’ imprisonment on count 5. The sentences were ordered to be served consecutively, for a total prison term of a life sentence without the possibility of parole plus seventy-eight years.

¶11 Jackson appealed on several grounds. People v. Jackson , 2018 COA 79, 474 P.3d 60. He argued, among other things, that his separate convictions and consecutive sentences for first degree murder (count 1) and attempted first degree murder (count 2) violated his state and federal constitutional rights against double jeopardy. Id. at ¶ 70. The People countered that the two separate convictions were justified because count 1 listed Y.M. as the victim while count 2 listed E.O. as the victim. However, the People agreed that a remand was necessary to direct the trial court to run the corresponding sentences concurrently. Id.

¶12 In a published opinion, a unanimous division of the court of appeals sided with Jackson. Id. at ¶ 83. Like the People, the division believed that there were two victims (Y.M. on count 1 and E.O. on count 2). Id. at ¶¶ 82 –83. But, invoking the transferred intent doctrine, it nevertheless found a double jeopardy violation. Id. It then vacated Jackson's conviction and sentence for attempted first degree murder and remanded the case to the trial court for correction of the mittimus. Id. at ¶ 91. The division otherwise affirmed the judgment of conviction. Id.

¶13 Both parties timely petitioned our court for certiorari. We denied Jackson's petition but granted the People's cross-petition.³

II. Analysis

¶14 We begin by examining the transferred intent doctrine and determining that it has no place in first degree murder cases in Colorado given our legislature's far-reaching definition of first degree murder, which encompasses unintended victims. Next, we conclude that even if our first degree murder statute didn't render the transferred intent doctrine unnecessary, the doctrine would still be irrelevant here because this is a mistaken-identity case, not a bad-aim case. In a mistaken-identity case like this one, there is only one victim—here, Y.M., the person the shooter aimed at and shot with the intent to kill, albeit by mistake. As such, in this case, there is no need to consider transferring the shooter's intent from one victim to another.

¶15 We proceed to hold that, notwithstanding the way the People charged count 2 (listing E.O. as the victim) and the arguments they advanced to the jury without objection in support of that count, as a legal matter and based on the evidence presented at trial, the victim of the attempted first degree murder was Y.M., the person the shooter aimed at and shot with the intent to kill. Because the first degree murder conviction and the attempted first degree murder conviction involved the same...