People v. Cockrell , 2017 COA 125 ( 2017 )


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  • COLORADO COURT OF APPEALS                                         2017COA125
    Court of Appeals No. 14CA0960
    El Paso County District Court No. 13CR2514
    Honorable Robin L. Chittum, Judge
    The People of the State of Colorado,
    Plaintiff-Appellee,
    v.
    Brandon Chad Cockrell,
    Defendant-Appellant.
    JUDGMENT AFFIRMED
    Division V
    Opinion by JUDGE NIETO*
    Román and Navarro, JJ., concur
    Announced October 5, 2017
    Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
    General, Denver, Colorado, for Plaintiff-Appellee
    Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy
    State Public Defender, Denver, Colorado, for Defendant-Appellant
    *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
    VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
    ¶1    Defendant, Brandon Chad Cockrell, appeals the judgment
    entered on jury verdicts finding him guilty of first degree murder
    and two violent crime sentence enhancers. We affirm.
    I. Background
    ¶2    Two mountain bikers found the victim while they were riding
    on a trail just outside of Colorado Springs and stopped to help. At
    about the same time, a couple driving down the road also saw the
    victim and stopped to help. The victim was dressed only in his
    underwear and socks and had injuries to his neck and chest. The
    bystanders began asking him questions about what had happened
    and who had shot him, and, in an effort to keep him awake until
    help could arrive, asked him more general questions about his
    background and life. The victim told them he was dying, but was
    able to answer their questions and said that he knew who had shot
    him. He did not, however, provide the shooter’s name.
    ¶3    When the paramedics arrived, they loaded the victim into the
    ambulance and rushed him to the hospital. An officer rode in the
    front of the ambulance and asked the victim questions about what
    had happened and who had shot him. The victim eventually
    identified Cockrell as the shooter.
    1
    ¶4    By the time he arrived at the hospital, the victim was barely
    conscious. He had eleven gunshot wounds. He died soon
    thereafter during surgery.
    ¶5    Cockrell was ultimately arrested and charged with first degree
    murder and two crime of violence sentence enhancers. No DNA,
    fingerprint, or other forensic evidence tied Cockrell to the victim’s
    murder. The primary evidence against him was the victim’s dying
    declaration identifying Cockrell as the shooter and a bystander’s
    statement that he saw a car leaving the area around the same time
    the victim was found that matched the description of the car
    Cockrell drove.
    ¶6    In a detailed and well-supported order, the trial court denied
    Cockrell’s motions to suppress the dying declaration and to find
    section 13-25-119, C.R.S. 2017, unconstitutional.
    ¶7    A jury found Cockrell guilty as charged. The court sentenced
    him to a term of life without the possibility of parole in the custody
    of the Department of Corrections.
    II. Facial Constitutional Challenge
    ¶8    Cockrell contends that section 13-25-119, the dying
    declaration statute, is unconstitutional on its face because it
    2
    violates the Confrontation Clause under the principles established
    in Crawford v. Washington, 
    541 U.S. 36
    (2004). We disagree.
    ¶9     We review the constitutionality of a statute de novo. People v.
    Helms, 
    2016 COA 90
    , ¶ 15. Statutes are presumed to be
    constitutional. 
    Id. Therefore, the
    party challenging them has the
    burden of proving they are unconstitutional beyond a reasonable
    doubt. 
    Id. ¶ 10
      The Sixth Amendment to the United States Constitution and
    article II, section 16 to the Colorado Constitution protect a
    defendant’s right to confront the witnesses against him. This right
    requires that a defendant be given a meaningful opportunity for
    effective cross-examination. People v. Dunham, 
    2016 COA 73
    , ¶ 25.
    ¶ 11   Section 13-25-119(1) provides the requirements for admitting
    the dying declarations of a decedent at trial. In Crawford, the
    Supreme Court held that “[t]estimonial statements of witnesses
    absent from trial have been admitted only where the declarant is
    unavailable, and only where the defendant has had a prior
    opportunity to 
    cross-examine.” 541 U.S. at 59
    .
    ¶ 12   Neither the United States Supreme Court nor the Colorado
    Supreme Court has spoken directly on the tension between the
    3
    dying declaration exception to the hearsay rule and the general
    principle articulated in Crawford. But in a footnote in Crawford,
    the Court said:
    The one deviation we have found involves
    dying declarations. The existence of that
    exception as a general rule of criminal hearsay
    law cannot be disputed. Although many dying
    declarations may not be testimonial, there is
    authority for admitting even those that clearly
    are. We need not decide in this case whether
    the Sixth Amendment incorporates an
    exception for testimonial dying declarations. If
    this exception must be accepted on historical
    grounds, it is sui generis.
    
    Id. at 56
    n.6 (citations omitted).
    ¶ 13   Also, in Giles v. California, 
    554 U.S. 353
    , 358 (2008), the Court
    stated, “[w]e have previously acknowledged that two forms of
    testimonial statements were admitted at common law even though
    they were unconfronted. The first of these were declarations made
    by a speaker who was both on the brink of death and aware that he
    was dying.” (Citations omitted.) In this same case, the Court, while
    discussing the common law doctrine of forfeiture by wrongdoing,
    twice referred to dying declarations as an exception to the
    Confrontation Clause. See 
    id. at 361-63.
    4
    ¶ 14   It is generally accepted that the Confrontation Clause should
    be read to include only those exceptions that existed at the time of
    its adoption. 
    Crawford, 541 U.S. at 54
    (The Sixth Amendment
    allows “only those exceptions established at the time of the
    founding.”); see People v. Monterroso, 
    101 P.3d 956
    , 972 (Cal.
    2004); Wisconsin v. Beauchamp, 
    796 N.W.2d 780
    , 784-85 (Wis.
    2011). The most notable exception at that time was the
    admissibility of dying declarations. See Davis v. Florida, 
    207 So. 3d 142
    , 160 (Fla. 2016); Hailes v. Maryland, 
    113 A.3d 608
    , 620 (Md.
    2015).
    ¶ 15   A dying declaration “is admissible as an exception to the
    hearsay rule because it poses a guarantee of trustworthiness based
    on the assumption that the belief of impending death excludes the
    possibility of fabrication by the declarant.” People v. Gilmore, 
    828 N.E.2d 293
    , 301 (Ill. App. Ct. 2005). Also, precluding the admission
    of dying declarations would, in many cases, result in “a manifest
    failure of justice.” Mattox v. United States, 
    156 U.S. 237
    , 244
    (1895); accord Carver v. United States, 
    164 U.S. 694
    , 697 (1897);
    see 
    Hailes, 113 A.3d at 622
    (“[T]he Confrontation Clause does not
    apply to dying declarations, not because dying declarations are
    5
    inherently reliable, but instead because excluding dying
    declarations for lack of cross-examination would result in a failure
    of justice.”).
    ¶ 16    Thus, most jurisdictions that have considered the issue have
    held that dying declarations are not subject to the Confrontation
    Clause and, therefore, not subject to Crawford. See 
    Monterroso, 101 P.3d at 972
    ; 
    Davis, 207 So. 3d at 161
    ; Sanford v. State, 
    695 S.E.2d 579
    , 584 (Ga. 2010); 
    Gilmore, 828 N.E.2d at 302
    ; Wallace v.
    State, 
    836 N.E.2d 985
    , 996 (Ind. Ct. App. 2005); State v. Jones, 
    197 P.3d 815
    , 822 (Kan. 2008); 
    Hailes, 113 A.3d at 621
    ; Commonwealth
    v. Nesbitt, 
    892 N.E.2d 299
    , 310-11 (Mass. 2008); People v. Taylor,
    
    737 N.W.2d 790
    , 795 (Mich. Ct. App. 2007); State v. Minner, 
    311 S.W.3d 313
    , 323 n.9 (Mo. Ct. App. 2010); Harkins v. State, 
    143 P.3d 706
    , 711 (Nev. 2006); People v. Clay, 
    926 N.Y.S.2d 598
    , 608-09
    (N.Y. App. Div. 2011); State v. Calhoun, 
    657 S.E.2d 424
    , 427-28
    (N.C. Ct. App. 2008); State v. Ray, 
    938 N.E.2d 378
    , 386 (Ohio Ct.
    App. 2010); State v. Lewis, 
    235 S.W.3d 136
    , 147-48 (Tenn. 2007);
    Gardner v. State, 
    306 S.W.3d 274
    , 288 n.20 (Tex. Crim. App. 2009);
    
    Beauchamp, 796 N.W.2d at 784-85
    ; see also United States v.
    Jordan, No. 04-CR-00229-LTB, 
    2014 WL 1796698
    , at *2 (D. Colo.
    6
    May 6, 2014) (unpublished opinion) (having previously determined
    that the defendant’s statements were dying declarations but were
    inadmissible under Crawford, the court revisited the issue in light
    of the defendant’s motion for a new trial and his objection to the
    government’s motion to introduce new evidence, and acknowledged
    the numerous post-Crawford decisions recognizing dying
    declarations as an exception to the Confrontation Clause before
    holding that the victim’s dying declarations were admissible), aff’d,
    
    806 F.3d 1244
    (10th Cir. 2015). But see United States v. Mayhew,
    
    380 F. Supp. 2d 961
    , 965–66 (S.D. Ohio 2005) (rejecting the
    argument that dying declarations are an exception to the
    Confrontation Clause but nonetheless admitting them under the
    theory of forfeiture by wrongdoing).
    ¶ 17   We agree with the reasoning of these courts and hold that
    dying declarations are an exception to the Confrontation Clause
    and to Crawford. In the unique instance of dying declarations, we
    need not consider whether the statement was testimonial or
    nontestimonial. See 
    Nesbitt, 892 N.E.2d at 311
    . Therefore, the
    dying declarations statute does not violate the mandate in
    Crawford, and it is constitutional.
    7
    ¶ 18   Accordingly, we reject Cockrell’s contention that the trial court
    erred by admitting the victim’s dying declarations because they
    violated the Confrontation Clause.
    III. Admission of Evidence
    ¶ 19   Cockrell also contends that the victim’s statement did not
    satisfy the statutory requirements for admission provided by section
    13-25-119. We disagree.
    ¶ 20   We review the trial court’s decision to admit evidence for an
    abuse of discretion. People v. Phillips, 
    2012 COA 176
    , ¶ 63. A court
    abuses its discretion when its decision is manifestly arbitrary,
    unreasonable, or unfair, or based on a misapplication or
    misinterpretation of the law. People v. McFee, 
    2016 COA 97
    , ¶ 17.
    To the extent this contention raises issues of statutory
    interpretation, we review those contentions de novo. Bly v. Story,
    
    241 P.3d 529
    , 533 (Colo. 2010). In interpreting statutes, “[o]ur
    primary objective is to effectuate the intent of the General Assembly
    by looking to the plain meaning of the language used, considered
    within the context of the statute as a whole.” 
    Id. ¶ 21
      Section 13-25-119(1) provides that the dying declarations of a
    deceased individual are admissible at trial if it is shown
    8
    (a) That at the time of the making of such
    declaration he was conscious of approaching
    death and believed there was no hope of
    recovery;
    (b) That such declaration was voluntarily
    made, and not through the persuasion of any
    person;
    (c) That such declaration was not made in
    answer to interrogatories calculated to lead the
    deceased to make any particular statement;
    (d) That he was of sound mind at the time of
    making the declaration.
    ¶ 22   The parties agree that the victim believed he was going to die.
    He had eleven gunshot wounds and death was imminent. He even
    made statements indicating he feared he was going to die. Thus,
    the first statutory element was satisfied.
    ¶ 23   As to the second element, the voluntariness of the victim’s
    statements, Cockrell asserts that the victim only identified Cockrell
    as the shooter after repeated questioning by bystanders,
    paramedics, and a police officer. He contends that this amounted
    to “impermissible persuasion.” The trial court found that the
    questions were designed, primarily, to keep the victim talking and
    to keep him alive. It also found that the officer’s questions in the
    ambulance “were open-ended questions. . . . [T]here is no evidence
    9
    of pressuring [the victim] or demanding an answer. He simply
    answered, and moved on to the next question.”
    ¶ 24   Cockrell suggests that a statement made after repeated
    questioning is not voluntary. This is not how our courts have
    interpreted that phrase. As in other contexts, we determine if a
    statement is voluntary by looking at whether any coercion or
    improper tactics were used. In People v. Mackey, 
    185 Colo. 24
    ,
    30-31, 
    521 P.2d 910
    , 914 (1974), the supreme court held that the
    mere fact that the victim was asked who shot him and details about
    where and how it happened did not render his dying declaration
    involuntary. In this context, we do not interpret “voluntary” as
    synonymous with spontaneous.
    ¶ 25   Having reviewed the record, we conclude that the trial court
    did not err in finding that the victim’s statements, though made in
    response to repeated questioning, were voluntarily made.
    ¶ 26   Regarding the third element, the record shows that the
    questions asked of the victim were open-ended: Who shot you?
    What happened? None of these questions led the victim to a
    particular answer or to identify a particular person. Rather, they
    were questions designed to gather facts, with no apparent pretense
    10
    involved. Accordingly, we conclude that the record supports the
    trial court’s finding that the third element was satisfied.
    ¶ 27   Finally, we look at the finding that the victim was of sound
    mind when he made his declarations. There was evidence that the
    victim was in a great deal of pain and that he was having trouble
    breathing. There was also evidence that he began to drift off at
    times. However, everyone who was present when the victim made
    the statements and who testified at trial stated that the victim was
    conscious and alert and was answering the questions appropriately.
    ¶ 28   Therefore, we conclude that the record supports the trial
    court’s finding that the fourth element was satisfied.
    ¶ 29   Accordingly, we conclude that the trial court did not abuse its
    discretion by admitting the victim’s dying declarations under
    section 13-25-119.
    IV. Sufficiency of the Evidence
    ¶ 30   Lastly, Cockrell contends that there was insufficient evidence
    to support his first degree murder conviction. We disagree.
    ¶ 31   We review the sufficiency of the evidence de novo, applying the
    substantial evidence test. See People v. Serra, 
    2015 COA 130
    , ¶ 18.
    11
    A reviewing court faced with a sufficiency
    challenge must determine whether the
    evidence, when viewed as a whole and in a
    light most favorable to the prosecution, is both
    substantial and sufficient to support a
    conclusion by a reasonable person that the
    defendant is guilty of the charge beyond a
    reasonable doubt.
    
    Id. “The evidence
    is sufficient if, after viewing the evidence in the
    light most favorable to the prosecution, a rational jury could have
    found the essential elements of the crime beyond a reasonable
    doubt.” People v. Boulden, 
    2016 COA 109
    , ¶ 6.
    ¶ 32   Here, the strongest evidence against Cockrell was the victim’s
    dying declaration identifying Cockrell as the shooter, which we have
    already determined to be admissible. It was for the jury to evaluate
    the evidence (or lack thereof) presented, weigh the credibility of
    witness testimony, and apply the law as instructed. See People v.
    Zaring, 
    190 Colo. 370
    , 371-72, 
    547 P.2d 232
    , 233 (1976); People v.
    Harris, 
    2016 COA 159
    , ¶ 78; People v. Whittiker, 
    181 P.3d 264
    , 277
    (Colo. App. 2006). And it was rational, based on the evidence
    presented, for the jury to have found Cockrell guilty as charged.
    See Ortega v. People, 
    161 Colo. 463
    , 466-67, 
    423 P.2d 21
    , 23 (1967)
    (“If a witness has the capacity ‘to observe, recollect, and
    12
    communicate, and some sense of moral responsibility,’ his
    testimony should be left for jury evaluation. . . . That [the victim]
    alone testified to the identity of [the defendant] does not necessarily
    create a case of insufficiency of evidence. This court has held . . .
    that the testimony of one witness identifying the accused as being
    present and participating in the crime was sufficient to take the
    issue to the jury.” (quoting State v. Leonard, 
    244 N.W. 88
    , 88-89
    (S.D. 1932))); People v. Plancarte, 
    232 P.3d 186
    , 192 (Colo. App.
    2009); see also 
    Beauchamp, 796 N.W.2d at 795
    (conviction affirmed
    where evidence included a dying declaration identifying the
    defendant and there was no fingerprint, DNA, or ballistics evidence).
    ¶ 33   Therefore, we conclude that the evidence was sufficient to
    sustain Cockrell’s conviction.
    V. Conclusion
    ¶ 34   The judgment is affirmed.
    JUDGE ROMÁN and JUDGE NAVARRO concur.
    13