People v. Shockey

545 P.3d 984

2023 COA 121

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

v.Jacob Alexander SHOCKEY, Defendant-Appellant.

Court of Appeals No. 21CA0311

Colorado Court of Appeals, Div. V.

Announced December 21, 2023

Rehearing Denied February 1, 2024

Arapahoe County District Court No. 17CR3039, Honorable Michael Spear, Judge

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FREYRE

¶ 1 Defendant, Jacob Alexander Shockey, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder. We consider, as a matter of first impression, the proper remedy for an ambiguity created by a special interrogatory response that negates an essential element of the crime of conviction. We conclude that the jury’s finding that Shockey did not possess, use, or threaten to use a deadly weapon is inconsistent with its finding of guilt for second degree murder—because the jury was not instructed on complicity—and that the finding negates the identity and causation elements of second degree murder. We further hold that this inconsistency constitutes structural error, and, because the prosecution failed to prove all the elements of the offense, we must vacate the judgment of conviction.

I. Background

¶ 2 The trial evidence established the following facts.

¶ 3 Shockey and codefendant, Parus Mayfield, went to a liquor store on Colfax Avenue in Denver. Shockey encountered the victim outside the store and confronted him about twenty dollars’ worth of "fronted" crack cocaine for which the victim had not yet paid. The victim said he had just been released from jail and did not have the money. Shockey said there was a way the victim could repay him.

¶ 4 Surveillance footage showed that, after this exchange, Shockey, Mayfield, and the victim walked away from the liquor store, west on Colfax Avenue for a block or two. They entered a dark alley running east-west and parallel to Colfax Avenue. When the three reached another alley, they turned a corner, out of view of the surveillance cameras. A few seconds later, Shockey returned from around the corner and walked west down the alley, away from Mayfield and the victim. Approximately one minute after Shockey left the alley, there was a flash of light in the trees above the alley. Immediately following the flash, Mayfield ran south, away from Colfax Avenue. The victim’s body was found in the alley. The coroner testified he died from gunshot wounds.

¶5 During their investigation, police identified an eyewitness to the shooting—a woman named Linzy who was the victim’s friend. Linzy struggled with substance abuse and admitted she was drunk and high when she witnessed the shooting and spoke with police. She said she did not know Shockey or May- field by name, but only knew one by the moniker "Tiny" and the other as his brother. Mayfield’s Facebook page, which the police accessed, showed he used the moniker "Tiny Looney Tunes," but Linzy provided contradictory statements at trial concerning which man was "Tiny."

¶ 6 During the police investigation, Linzy said she followed the three men into the alley and hid behind a dumpster; then "Tiny" shot the victim and ran south down the alley away from Colfax. During direct examination, she identified Shockey as "Tiny," but she also testified that "Tiny" was the man standing in front of her inside the liquor store, whom a surveillance video showed was Mayfield. And when shown the video, Linzy was adamant that the person dressed in white clothing (Shockey) was not "Tiny."

¶ 7 During cross-examination, Linzy identified Mayfield as "Tiny" in a photo lineup and identified Shockey as "Tiny’s" brother. But she never wavered on her claim that the shooter ran south down the alley away from Colfax.

¶ 8 Shortly before trial, Mayfield accepted a plea agreement in exchange for testifying against Shockey. He testified that Shockey shot the victim, and that he did not know Shockey had a gun or intended to shoot the victim. He testified that he thought Shockey was going to beat up the victim because they had previously done so in an attempt to collect the owed money. He admitted that he ran south down the alley away from Colfax when he heard shots fired.

¶ 9 For his part, Shockey told the police that the victim owed Mayfield money for drugs and that Mayfield had shot the victim. He further claimed that, as they walked down the alley with the victim, he heard Mayfield say he was going to "lay [the victim] down" and thought that Mayfield was going to shoot and kill the victim. The police never recovered a gun.

¶ 10 The prosecution charged Shockey and Mayfield with first degree murder and two crime of violence sentence enhancers. Before trial, the prosecution submitted proposed jury instructions that did not include a complicity instruction. At the close of the evidence, the prosecutor tendered a complicity instruction that the court rejected. The jury acquitted Shockey of first degree murder and convicted him of the lesser included offense of second degree murder. But the jury also found, in a special interrogatory,¹ that Shockey had not used, possessed, or threatened the use of a deadly weapon. The court denied Shockey’s post-trial motion to vacate the conviction based on an inconsistent verdict and sentenced him to forty years in the custody of the Department of Corrections, consecutive to an unrelated sentence.

¶ 11 Shockey challenges his conviction on several grounds. He argues that the inconsistency between the special interrogatory finding and the verdict requires us to vacate his conviction. He further argues that the trial court erroneously (1) permitted, over defense objection, the prosecutor to extensively voir dire on complicity and equate it to accountability, knowing the trial evidence would not support this theory; (2) refused to inform the prospective jurors of the correct legal definition of complicity; (3) denied his post-trial motion to vacate the conviction based on the inconsistent verdict and juror affidavits showing the jurors relied on the extraneous prejudicial discussion of complicity in voir dire to convict him; (4) admitted prior misconduct evidence in violation of Rojas v. People, 2022 CO 8, 504 P.3d 296; and (5) ordered restitution based on insufficient evidence. Because we agree with Shockey’s first contention and vacate his conviction, we need not address his remaining contentions.

II. Inconsistent Verdict

¶ 12 Shockey contends that the jury’s finding that he did not use, possess, or threaten to use a deadly weapon cannot be reconciled with its decision to convict him of second degree murder. He reasons that this finding established that he was not the shooter and shows the prosecution failed to prove the elements of identity and causation. He further reasons that the only way the jury could have convicted him was if it considered the erroneous complicity discussion during voir dire, since the court never instructed the jury on complicity.

A. Additional Facts

¶ 13 During voir dire, the prosecutor discussed complicity liability and used a hypothetical to illustrate the concept:

Under Colorado law, someone can be guilty as a complicitor and a principal. So I’m going to give you a little bit of a scenario to maybe explain it and then I want to talk with you guys about what you think about complicitor. So let’s talk about a scenario of a robbery of a bank. So you have the getaway driver, you have the lookout and you have the guy that goes in with the mask and the gun. So all three of them decide, you know what, we’re going to rob this bank. So the driver drives the lookout, himself, and the robber to the bank. The lookout goes out and stands in front of the bank to look for cops or anyone else. And then you have the guy that goes in and robs the bank and he’s got a gun and a mask and points a gun at a teller and gets the money from the bank. Now, under Colorado law, all —

¶ 14 Defense counsel objected based on his understanding that a complicity instruction was not going to be submitted to the jury at the close of the evidence. Ruling to let the prosecutor continue, the court said,

Well, just so the jury panel is aware, frankly, during jury questioning there’s going to be mention made of perhaps certain concepts of law, some examples that have occurred up to this point, and while it might not ultimately be applicable to the case before us, really if this is something that the prosecution would like to pursue, I’ll go ahead and let that continue because I think also the Court usually looks at it as an opportunity for jurors to kind of break the ice, so to speak, and provide information as well, perhaps on more pertinent issues.

¶ 15 The prosecutor proceeded to discuss complicity liability and her robbery hypothetical at length. She explained that, under Colorado law, all three defendants in her hypothetical could be found equally guilty of robbery, even though the lookout and the getaway driver did not actually commit the robbery, because they would be liable under complicitor liability. She then asked the jurors whether they would be comfortable holding all the defendants in her hypothetical "accountable" even if some of the defendants did not actually commit the robbery. Many jurors indicated agreement that the "punishment" or "treatment" should be the same for the lookout as for the person who robbed the bank. Many jurors likewise interchanged the term "complicity" with "accountability."

[PROSECUTOR]: [U]nder Colorado law, all three could be guilty of aggravated robbery, even though we’re talking about the lookout, we’re talking about the getaway driver, even though they didn’t go into the bank and actually rob the bank. What do you think about that?

[PROSPECTIVE JUROR 1]: They...