People v. Jacob Alexander Shockey

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
December 21, 2023

2023COA121

No. 21CA0311, People v. Shockey — Criminal Law — Verdicts
or Findings — Special Interrogatories — Inconsistent Verdicts

As a matter of first impression, a division of the court of

appeals considers the proper remedy when a response to a special

interrogatory negates an essential element of the substantive

offense of conviction. The division in People v. Brooks, 2020 COA

25, held that a special interrogatory can negate an element of an

offense and that the proper remedy there was the entry of

conviction for the lesser included offense. It did not consider the

question presented here. The division holds that when a jury’s

special interrogatory response negates an essential element of the

convicted offense, structural error occurs, and the proper remedy is

to vacate the conviction.
The partial dissent disagrees that the interrogatory response

negated an element of the convicted offense and instead concludes

that the jury verdict and interrogatory response were logically

inconsistent and mutually exclusive. The partial dissent would

reverse the conviction and grant a new trial.
COLORADO COURT OF APPEALS 2023COA121

Court of Appeals No. 21CA0311
Arapahoe County District Court No. 17CR3039
Honorable Michael Spear, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob Alexander Shockey,

Defendant-Appellant.

JUDGMENT VACATED

Division V
Opinion by JUDGE FREYRE
Yun, J., concurs
Richman*, J., concurs in part and dissents in part

Announced December 21, 2023

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

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
¶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

1
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 Mayfield by name, but only

knew one by the moniker “Tiny” and the other as his brother.

2
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

3
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

1 In another special interrogatory, the jury found that Shockey

caused the death, consistent with the causation element of second
degree murder, thereby rendering the interrogatory responses

4
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

internally inconsistent, an issue not raised in this appeal. In any
event, this inconsistency does not affect our analysis.

5
Rojas v. People, 2022 CO 8; 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.

6
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

7
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’re all still
complicit.

[PROSECUTOR]: And you’re okay with that?

[PROSPECTIVE JUROR 1]: Yeah, I think they
all should receive the same treatment.

¶ 16 Addressing another juror, the prosecutor asked

8
[PROSECUTOR]: Does it bother you that the
person who didn’t have the gun and who
wasn’t involved in the actual robbery itself
inside the bank could be held accountable as
the person who went in and robbed the bank?

[PROSPECTIVE JUROR 2]: Yeah, because he
knew the guy went in there with a gun. He’s
complicit in the fact that he’s going to go along
with whatever happens in the bank. I would
think he would be guilty too.

¶ 17 Addressing two other jurors, the prosecutor asked two jurors

the following:

[PROSECUTOR]: [B]ack to my scenario, we
have the lookout person versus the person that
goes in and robs with the gun, should they
both be held accountable?

[PROSPECTIVE JUROR 3]: Held accountable,
yes, but maybe not to the same amount.

[PROSPECTIVE JUROR 4]: I think everyone
should be held accountable to the same extent.
They all know what they’re getting into . . . .
So yeah, if you know that other people’s lives
are going to be put in danger, you have the
opportunity to back out and say no, I don’t
want to do that, that’s your choice but you go
ahead and go along with it. And so yes, you
should still have the same punishment as
anyone else.

¶ 18 Addressing two more jurors, she continued:

[PROSECUTOR]: So you feel good about
complicity when we’re talking about all three
players in my little scenario?

9
[PROSPECTIVE JUROR 5]: Yes.

[PROSECUTOR]: How about you, Mr. [B] . . . .
What do you think, complicity?

[PROSPECTIVE JUROR 6]: Well, I think there’s
— we touched upon it here that there might
have been some levels of complicity or
accountability depending on whether, you
know, the event went off as planned . . . . If
somebody goes off the rails, I think they’re the
one that has to be accountable for that. I
mean, there is some accountability or
complicity, whatever you want to call it, for all
of them because if you set up the — all set up
the scenario that caused this to happen, but if
somebody actually went off the rails, like I
said, there’s some additional accountability for
that person.

¶ 19 During questioning, a few jurors indicated difficulty holding all

three defendants “equally accountable” for the robbery.

¶ 20 At this point, the defense again objected and asked the court

to read the elements of complicity contained in section 18-1-603,

C.R.S. 2023. The court overruled the objection and refused to do

so. The prosecutor continued:

[PROSECUTOR]: Mr. M[], what do you think?

[PROSPECTIVE JUROR 7]: Maybe I’m getting
ahead of the curve here, but in terms of
complicity, there’s two aspects. One, there’s
guilty and innocence and people are complicit
as you described, then they’re guilty. I can see
a scenario where maybe the punishment might

10
vary depending upon degree, but that’s a
whole other conversation. If people were —
were involved in the planning and knew
something was either going to happen or could
happen, then guilty at that point. I have no
problem.

[PROSECUTOR]: Anyone feel different? Ms.
S[], what do you think?

[PROSPECTIVE JUROR 8]: You know, maybe
like he said, the person who actually pulled
the trigger may have a longer sentence or more
harsher sentence, I can get that, but honestly,
it doesn’t really matter what we think, because
if Colorado law has already determined what
that is, then you have to rule by the law. It
doesn’t really matter whether you think, oh,
the guy was just the getaway driver, whatever
the law says is what — I mean, that’s what I’m
getting from all of this.

¶ 21 During the defense’s voir dire, counsel discussed complicity

liability with the potential jurors and provided them the legal

definition of complicity.

¶ 22 Immediately before opening statements, the court instructed

the impaneled jury that it must decide the case based on the legal

instructions provided by the court at the end of trial, and not based

on legal concepts discussed during voir dire.

After the evidence is completed in this case,
then I will present to you what are called
instructions of law. These will be in written

11
form. I am required to read [them] to you and
then you’ll all get a copy to take back to the
jury room, so for your own personal review and
for the jury’s review as well.

Now, there has been a lot of comment on the
law in this case, what might be or might not be
applicable, and of course during the course of
a trial, things may change a little bit. So what
we tell you today about what the law is
actually could vary significantly from what
you’re informed of at the end of the trial itself.

So please keep in mind leeway has been
granted for the parties to discuss the law in
this case. The fact is if their discussions vary
from what I give you at the end of the trial,
frankly if my discussions vary from what I
g[i]ve you at the end of the trial, those
discussions at the end of the case will control
your deliberations in this matter.

¶ 23 Neither the prosecution nor defense counsel discussed

complicity liability during opening statements.

¶ 24 At the end of the trial, the prosecutor submitted a second set

of proposed instructions that included complicity. The court

rejected the tendered complicity instruction and found that the

prosecutor had not presented sufficient evidence to warrant the

instruction. It further found that a complicity instruction would

“completely confuse the issues before the jury.”

12
¶ 25 The court instructed the jury that the elements of second

degree murder are as follows:

1. That [Shockey],

2. in the State of Colorado, at or about the
date and place charged,

3. knowingly,

4. caused the death of [the victim].

¶ 26 The court also gave the jury the following special interrogatory,

which the jury answered:

13
¶ 27 Additionally, the court instructed the jury to base its decision

on the instructions provided by the court, not on any discussion of

the law by the parties:

It is my job to decide what rules of law apply to
the case. While the attorneys may comment
on some of these rules, you must follow the
instructions I give you. Even if you disagree
with or do not understand the reasons for
some of the rules of law, you must follow them.
No single instruction describes all the law
which must be applied; the instructions must
be considered together as a whole. During the
trial, you received all of the evidence that you
may properly consider in deciding the case.
Your decision must be made by applying the
rules of law that I give you to the evidence
presented at trial.

¶ 28 After several days of deliberations, the jury returned its

verdict, acquitting Shockey of first degree murder and convicting

him of second degree murder. The jury answered “No” to the

special interrogatory asking whether Shockey possessed, used, or

threatened the use of a deadly weapon. The court polled the jury,

and all jurors confirmed the verdict.

14
¶ 29 Before sentencing, Shockey moved to vacate the conviction,

asserting that the verdict was both logically and legally inconsistent

given the jury’s response to the special interrogatory.2

¶ 30 After a hearing on the motion, the court found that the jurors

could have relied on a “common sense” theory of complicity to

convict Shockey, even if he had not directly pulled the trigger, and

denied the motion.

B. Preservation

¶ 31 The parties dispute preservation. Relying on In re Estate of

Chavez, 2022 COA 89M, the People contend that Shockey waived

the inconsistent verdict issue because his attorney did not

contemporaneously object before the court released the jurors. We

are not persuaded because inconsistent verdicts in civil cases

involve different rights and a different burden of proof. The People

do not identify, nor have we found, any record evidence that

Shockey’s counsel intentionally relinquished this claim. See People

2 He also attached two juror affidavits stating that the jury

convicted Shockey based on the prosecutor’s discussion of
complicity during voir dire. We do not consider the affidavits in our
analysis. CRE 606(b).

15
v. Rediger, 2018 CO 32, ¶ 40 (Waiver is the “intentional

relinquishment of a known right or privilege.”). Instead, the record

shows that Shockey’s counsel objected to the inconsistent verdicts

in the motion to vacate the conviction, in the supplemental motion

to vacate, and during the post-trial hearing.

¶ 32 Moreover, Rail v. People, 2019 CO 99, does not require a

different result. In that case, the supreme court rejected a similar

waiver argument and followed Rediger, which requires “some

evidence, beyond mere acquiescence, that the defendant

intentionally relinquished a known right or privilege.” Rail, ¶ 35

(citation omitted). Accordingly, we conclude the issue is preserved

for our review.

C. Standard of Review

¶ 33 Whether verdicts are logically or legally inconsistent is a

question of law we review de novo. People v. Brooks, 2020 COA 25,

¶ 19; People v. Struckmeyer, 2020 CO 76, ¶ 3. We have a duty “to

reconcile and uphold verdicts if the evidence so permits.” People v.

Scearce, 87 P.3d 228, 232 (Colo. App. 2003). “If the verdicts are

consistent in any view of the evidence, the presumption is that the

jury took that view.” Id.

16
¶ 34 In Brooks, the division considered the proper standard of

review to apply when deciding whether a special interrogatory

response conflicts with the general verdict form. Brooks, ¶¶ 19-20.

Noting that no Colorado court had decided this issue, the division

assumed without deciding that the issue should be reviewed de

novo because the considerations it implicates are similar to those

presented by mutually exclusive verdicts.3 To support its

conclusion, the division relied on Kreiser v. People, 199 Colo. 20,

21-24, 604 P.2d 27, 28-30 (1979), in which the supreme court, in

considering a claim that a verdict was ambiguous, did not

specifically identify the standard of review, yet seemingly reviewed

the issue de novo. Id.

¶ 35 We agree with the reasoning in Brooks and Kreiser and

therefore review de novo whether a verdict is internally inconsistent

and thus ambiguous. Id.

3 The court concluded that it did not need to make a hard and fast

rule about what the appropriate standard of review was because, on
the facts of the case, it would make no difference in the outcome.
People v. Brooks, 2020 COA 25, ¶ 20.

17
D. Applicable Law

¶ 36 “Taken together, the Fifth Amendment Due Process Clause

and the Sixth Amendment guarantee of a trial by jury permit

conviction only upon a jury verdict finding the defendant guilty of

having committed every element of the crime with which he has

been charged.” Sanchez v. People, 2014 CO 29, ¶ 13. Thus, courts

are prohibited “from entering a conviction for an offense other than

that authorized by a jury’s verdict, or directing a verdict for the

State, no matter how overwhelming the evidence.” Id.

¶ 37 To satisfy due process, the prosecution is required to prove all

elements of a crime beyond a reasonable doubt. Montez v. People,

2012 CO 6, ¶ 21 (first citing U.S. Const. amend. XIV, § 1; and then

citing Colo. Const. art. II, § 25). And the trial court must instruct

the jury correctly on all matters of law. See People v. Manier, 197

P.3d 254, 259 (Colo. App. 2008).

¶ 38 “A verdict in a criminal case should be certain and devoid of

ambiguity.” Brooks, ¶ 11 (quoting Yeager v. People, 170 Colo. 405,

410, 462 P.2d 487, 489 (1969)). The verdict must “convey beyond a

reasonable doubt the meaning and intention of the jury.” People v.

Durre, 690 P.2d 165, 173 (Colo. 1984) (quoting Yeager, 170 Colo. at

18
410, 462 P.2d at 489). But subject to certain limitations discussed

herein, “consistency among verdicts is unnecessary.” People v.

Whittiker, 181 P.3d 264, 278 (Colo. App. 2006) (quoting People v.

Beatty, 80 P.3d 847, 852 (Colo. App. 2003)).

¶ 39 As relevant here, a person commits second degree murder if,

among other things, he knowingly causes the death of a person.

§ 18-3-103(1)(a), C.R.S. 2023. “A person acts ‘knowingly’ . . . , with

respect to a result of his conduct, when he is aware that his

conduct is practically certain to cause the result.” § 18-1-501(6),

C.R.S. 2023.

¶ 40 Colorado jurisprudence has recognized three distinct

categories where a verdict inconsistency may result in an infirm

conviction. The first occurs when a conviction contradicts an

acquittal — for example, a defendant may not be simultaneously

acquitted of a substantive offense and convicted of conspiracy to

commit that substantive offense when the evidence supporting both

is the same. Robles v. People, 160 Colo. 297, 300-01, 417 P.2d 232,

234 (1966).

¶ 41 The second occurs when jury verdicts for two different counts

are mutually exclusive — that is, a defendant may not be convicted

19
of two distinct offenses “when the essential elements of [the] two

guilty verdicts logically negate each other.” People v. Delgado, 2019

CO 82, ¶ 12. For example, a defendant may not be convicted of

both robbery and theft from a person based on the same conduct

because the robbery conviction requires proof that the defendant

unlawfully took an item with force, whereas the theft conviction

requires proof that the defendant unlawfully took an item without

force. Id. at ¶ 46. Mutually exclusive guilty verdicts are not

permitted because of the defendant’s “right to have each element of

a crime proven beyond a reasonable doubt.” Id. at ¶ 21.

¶ 42 Finally, the third occurs when a jury’s response to a special

interrogatory negates an element of the substantive offense to which

that special interrogatory applies. Brooks, ¶¶ 15-18.

¶ 43 Our supreme court first addressed this third category in Rail.

There, the defendant was charged with sexual assault on a child as

a pattern of abuse and sexual assault on a child by one in a

position of trust. Rail, ¶ 3. The jury convicted the defendant of

sexual assault on a child. Id. at ¶ 11. It also found, in the pattern

special interrogatory, that the prosecution had proved all the

incidents described by the victim. Id. Nevertheless, in the position

20
of trust special interrogatory, the jury found that the incidents

listed on the pattern special interrogatory were “[n]ot [p]roved.” Id.

¶ 44 Although the supreme court distinguished a jury’s unanimity

interrogatory responses nullifying its verdict from cases involving

mutually exclusive verdicts, id. at ¶¶ 25-26, it never resolved

whether a special interrogatory response can create an ambiguity in

a verdict. Instead, the supreme court, analyzing for plain error,

concluded that the trial court’s entry of the judgment of conviction

was obvious error, but that the error was mitigated by each juror’s

reaffirmation of the verdict during polling. Id. at ¶ 46.

Consequently, the court declined to reverse the defendant’s

conviction. Id.

¶ 45 In Brooks, a division of this court applied the Rail analysis and

held that a jury’s response to a special interrogatory can negate an

element of the substantive offense. Brooks, ¶¶ 21-25. There, the

defendant was charged with first degree burglary as a crime of

violence, among other counts. Id. at ¶ 4. The jury convicted the

defendant of first degree burglary, but it also found, on the special

interrogatory, that the defendant had not used, or possessed and

threatened the use of, a deadly weapon. Id. at ¶ 8. The trial court

21
entered a judgment of acquittal for first degree burglary based on

this inconsistency, and the People appealed. Id. at ¶¶ 9-10. The

division concluded that the jury’s verdict could not be reconciled

with its special interrogatory response and found that the verdict

was ambiguous. Id. at ¶¶ 24-25.

¶ 46 Turning to the appropriate remedy for this ambiguous verdict,

the division noted a key distinction between the remedy for two

mutually exclusive guilty verdicts and the remedy for a single

internally inconsistent verdict. Id. at ¶¶ 27-31. In the former, the

division observed that the appropriate remedy is a retrial because

the jury “essentially says that the defendant did not commit crime

one because he committed crime two, and also that the defendant

did not commit crime two because he committed crime one.” Id. at

¶ 28; see Delgado, ¶¶ 42, 45. In the latter, the division noted that,

“[u]nlike mutually exclusive verdicts, when an inconsistency within

a single verdict negates an element, the remaining elements may

nevertheless support a guilty verdict.” Brooks, ¶ 29.

¶ 47 The jury’s response to the special interrogatory negated only

the ninth element of first degree burglary: the remaining elements

— the elements of the lesser included offense of second degree

22
burglary — remained consistent with the special interrogatory

response. Id. at ¶ 30. Thus, the division concluded that “[r]ather

than acquittal or retrial, the proper remedy for an ambiguous

verdict in this circumstance is to enter a conviction to the lesser

included offense encompassed by the unchallenged jury findings.”

Id. at ¶ 31. It reversed the trial court’s judgment of acquittal on the

first degree burglary conviction and remanded with instructions to

enter a judgment of conviction for the lesser included offense of

second degree burglary.4 Id. at ¶ 41.

¶ 48 Brooks, however, did not consider the appropriate remedy in a

case like this, where the special interrogatory negates an essential

element of the offense and all lesser included offenses. We now

turn to that question.

E. Analysis

¶ 49 The court instructed the jury that, to convict Shockey of

second degree murder, it had to find that he knowingly caused the

death of the victim. The prosecution’s entire theory of the case was

4 The division also concluded that entering a conviction for second

degree burglary did not raise due process or double jeopardy
concerns. Brooks, ¶¶ 32-33.

23
that Shockey was the shooter and that he caused the victim’s

death. And the evidence showed that the victim died from gunshot

wounds. Thus, by convicting Shockey of second degree murder, the

jury found beyond a reasonable doubt that Shockey shot the victim.

But by finding that the prosecution did not prove beyond a

reasonable doubt that Shockey used, possessed, or threatened to

use a deadly weapon, the jury inconsistently concluded that the

prosecution had not proved that Shockey was the shooter. Thus,

the record reveals an inconsistent finding concerning the identity of

the shooter and causation. And the only way to reconcile these

inconsistent findings is by applying a complicity theory to the facts,

a legal theory the court rejected and for which the jury received no

instruction.

¶ 50 To ensure that jurors are fair and impartial, they are not

permitted to consider “any information that is not properly received

into evidence or included in the court’s instructions.” People v.

Harlan, 109 P.3d 616, 624 (Colo. 2005). And we must presume

24
that the jury followed the instructions it was given. People v.

Dominguez-Castor, 2020 COA 1, ¶ 91.5

¶ 51 We conclude that the jury’s special interrogatory finding that

the prosecution had not proved that Shockey used, possessed, or

threatened to use a gun negated the causation and identity

elements of second degree murder, and that absent a complicity

instruction, these two unanimous findings (that Shockey shot the

victim but that the prosecution failed to prove that he used a deadly

weapon) contradict each other and render the conviction infirm.

See Brooks, ¶ 24; Durre, 690 P.2d at 173. We hold that, in this

circumstance, the proper remedy is vacatur of the conviction

because the jury made a factual determination that the prosecution

did not prove all of the elements of the offense beyond a reasonable

doubt, and to permit a different jury to reconsider that finding

would violate Shockley’s constitutional right to be free from double

jeopardy. 6 Wayne R. LaFave et al., Criminal Procedure § 24.10(a),

5 We acknowledge the irony in relying on this presumption when

the record reveals the jury did not follow it.

25
Westlaw (4th ed. database updated Nov. 2022); see also Sanchez, ¶

15.

¶ 52 We are not persuaded otherwise by the People’s attempt to

distinguish a finding beyond a reasonable doubt from a finding that

the prosecution failed to prove its case beyond a reasonable doubt.

They argue that the verdict and interrogatory response are not

inconsistent because the jury did not find beyond a reasonable

doubt that Shockey did not use a deadly weapon. Instead, they

assert that the jury actually found the prosecution had not proved

beyond a reasonable doubt that Shockey used a deadly weapon.

True, but this is a distinction without a difference because a jury’s

finding beyond a reasonable doubt that the prosecution failed to

prove an element beyond a reasonable doubt holds the prosecution

to its burden. See Tibbels v. People, 2022 CO 1, ¶ 23 (“The Due

Process Clause of the United States Constitution ‘protects the

accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which

[they are] charged.’” (quoting In re Winship, 397 U.S. 358, 364

(1970))).

26
¶ 53 Instead, we are persuaded by our supreme court’s analysis in

Sanchez v. People, 2014 CO 29. There, the jury found the

defendant not guilty of sexual assault on a child. Id. at ¶ 8. But it

also found, on the pattern of abuse verdict form, that two of the six

touching incidents had been proved. Id. The trial court then

entered a judgment of conviction for sexual assault on a

child - pattern of abuse. Id. The supreme court reversed and

concluded that because the jury found the defendant not guilty of

the substantive offense of sexual assault on a child, the trial court

could not enter judgment based on the findings in a sentence

enhancer. Id. at ¶¶ 15-17. It held that “[e]ntering [a] judgment of

conviction of a crime as to which the jury instructions fail to

produce a verdict of guilty beyond a reasonable doubt amounts to

structural error, mandating reversal.” Id. at ¶¶ 14, 19.

¶ 54 Here, as in Sanchez, we have an ambiguity created by a

special interrogatory response; however, it is one that negates two

essential elements of the substantive offense — identity and

causation. Because the jury instructions failed to produce a verdict

of guilt beyond a reasonable doubt on all the elements of second

degree murder, the trial court’s judgment of conviction amounts to

27
structural error mandating reversal. See id. at ¶ 15 (“It is enough

here that the verdict on the basis of which the trial court entered

judgment of conviction . . . simply failed to evidence a unanimous

jury determination that the defendant committed all the elements

and was guilty of a crime.”).

¶ 55 We hold that vacatur is the proper remedy here because, as in

Sanchez, the jury failed to prove two essential elements of the

substantive offense beyond a reasonable doubt, amounting to

structural error and the attachment of double jeopardy. See People

v. Porter, 2015 CO 34, ¶ 9 (The Double Jeopardy Clauses of the

United States and Colorado Constitutions prevent “both a second

prosecution for the same offense after acquittal or conviction and

multiple punishments for the same offense.”) (emphasis added).

Moreover, a retrial would not be the proper remedy for three

reasons. First, as noted in Delgado, retrial is appropriate for claims

of mutually exclusive verdicts. See Delgado, ¶ 43 (holding acquittal

on both charges was not the proper remedy for inconsistent verdicts

because the jury did not actually acquit the defendant). Second,

unlike in Brooks, there is no lesser included offense that has been

factually proved beyond a reasonable doubt that would allow us to

28
reverse and remand for entry of a different conviction. Finally, the

dissent’s reasoning for a retrial requires it to consider that the trial

court refused to instruct the jury on complicity and conclude that

was error, an issue not raised by the parties and, therefore, not

properly before us. See Bd. of Cnty. Comm’rs v. Cnty. Rd. Users

Ass’n, 11 P.3d 432, 438 (Colo. 2000) (stating that a court may not

“render an advisory opinion on a controversy that is not yet ripe, or

to decide a case on speculative, hypothetical, or [a] contingent set of

facts”) (citation omitted); People v. Becker, 2014 COA 36, ¶ 29

(“Addressing the issues would therefore result in an advisory

opinion, which risks improperly depriving the parties of their

prerogative to litigate the case as they choose.”); People v. Curtis,

2014 COA 100, ¶ 12 (“[T]he cardinal principle of judicial restraint

[is that] if it is not necessary to decide more, it is necessary not to

decide more.” (quoting PDK Labs. Inc. v. U.S. Drug Enf’t Admin., 362

F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and

concurring in the judgment))).

¶ 56 Accordingly, we vacate the judgment of conviction. Because

the conviction is vacated, we do not address Shockey’s remaining

contentions.

29
III. Disposition

¶ 57 The judgment is vacated.

JUDGE YUN concurs.

JUDGE RICHMAN concurs in part and dissents in part.

30
JUDGE RICHMAN, concurring in part and dissenting in part.

¶ 58 I agree with the majority that defendant’s conviction for

second degree murder cannot stand. But because I would reverse

for a different error than found by the majority, and because that

reversible error arose from the trial court’s rulings, I disagree with

the majority that the reversal precludes retrial of defendant.

¶ 59 The majority’s conclusion rests on its view that the jury’s

answer to the special interrogatory stating that defendant did not

use or possess a deadly weapon negates an element of the offense of

second degree murder, of which the jury convicted defendant. I

disagree with that premise.

¶ 60 The jury was instructed that to convict defendant of second

degree murder, it must find beyond a reasonable doubt the

following elements of the offense: that the defendant, in the State of

Colorado, knowingly caused the death of the victim. That

instruction does not list use or possession of a deadly weapon as an

element of the offense. The jury was asked to answer the special

interrogatory because use of a deadly weapon in the commission of

the murder was charged as a sentence enhancer in count 3 of the

complaint, not because it was an element of the offense.

31
¶ 61 When the jury convicted defendant of second degree murder, it

necessarily found that he caused the death of the victim. It also

found that defendant did not use or possess a deadly weapon. The

majority concludes that the jury’s answer to the special

interrogatory conflicts with an element of the second degree murder

instruction. The majority explains that conflict by pointing out

that, since the uncontradicted evidence showed that the victim died

due to a gunshot, and the jury found that defendant did not use or

possess a deadly weapon, defendant could not have murdered the

victim. To support this analysis, the majority relies on People v.

Brooks, 2020 COA 25.

¶ 62 But this case is different from the situation in Brooks. In

Brooks, as here, the jury answered a special interrogatory stating

that the defendant did not use a deadly weapon in the commission

of the offense of which he was convicted. But in Brooks, use of a

deadly weapon was a listed element of the first degree burglary

offense for which Brooks was convicted, and the jury’s answer to


In a separate special interrogatory, the jury expressly found that
defendant “caused serious bodily injury or death” to the victim.

32
the special interrogatory necessarily negated that element. But in

the instant case, as noted, use of a deadly weapon was not an

element of the second degree murder charge. In my judgment, the

inconsistent jury verdicts in this case should be viewed as logically

inconsistent and mutually exclusive, and thus retrial is the proper

remedy. See People v. Delgado, 2019 CO 82, ¶¶ 28, 45.

¶ 63 Although not the typical case, a defendant can be found guilty

of second degree murder without having used a deadly weapon;

namely, as a complicitor of one who does wield the deadly weapon.

The majority points out that the jury here was not instructed on a

complicity theory. I agree. And that is where the trial court’s error

comes into play.

¶ 64 As defendant argues on appeal, the trial court allowed the

prosecution to ask extensive questions during voir dire about

finding a defendant guilty based on a complicity theory. The


I also disagree with the majority that Sanchez v. People, 2014 CO
29, precludes reversing for a new trial in this case. In Sanchez, the
jury returned a not guilty verdict as to the substantive offense of
sexual assault but found that the sentence enhancer was proved.
The supreme court thus held that the defendant was not convicted
by a unanimous jury. Id. at ¶ 15. Here, by contrast, the jury
unanimously found defendant guilty of the substantive offense.

33
majority states that the prosecutor discussed complicitor liability

“at length.” Supra ¶¶ 15-18. The majority opinion details this

questioning, and I need not repeat it here. Defense counsel

objected to the prosecution’s questioning, but the trial court let the

prosecutor continue. The prosecutor elicited agreement from

several jurors that they would not have a problem convicting on a

complicity theory.

¶ 65 Apparently concerned that the prosecutor was not accurately

describing complicitor liability, defendant’s counsel asked the trial

court to read the legal definition of complicity to the jury. The trial

court refused to do so. In my view, as more fully explained below,

the trial court erred by allowing this jury questioning about

complicitor liability.

¶ 66 The trial court then compounded its error by not instructing

the jury in the closing instructions on a complicitor theory of

liability, as requested by the prosecution. In my view, the trial

court erroneously concluded that there was not sufficient evidence


I recognize that defendant does not claim error in failing to
instruct on complicitor liability, but I discuss that failure because it
is a link in the chain of errors that led to the inconsistent verdict.

34
to warrant the instruction and wrongly concluded it would

“completely confuse the issues before the jury.”

¶ 67 Finally, the trial court erred by denying defendant’s motion to

vacate the verdict because it was logically and legally inconsistent.

The trial court must have recognized that the jury’s verdict was

based on a complicitor theory on which it had not been instructed,

but it dismissed that error by stating the jury could have relied on a

“common sense” theory of complicity.

¶ 68 This cascade of errors substantially influenced the verdict and

undermined the reliability of the judgment of conviction,

necessitating reversal and a remand for a new trial, as defendant

requests. See Hagos v. People, 2012 CO 63, ¶ 12.

I. Voir Dire

A. Applicable Law and Standard of Review

¶ 69 The purpose of voir dire is to test whether the jurors possess

any beliefs that would deny the defendant a fair trial. People v.

Wilson, 2013 COA 75, ¶ 12. The propriety of questions to potential

jurors on voir dire is within the discretion of the trial court, and its

ruling thereon will not be disturbed on appeal unless an abuse of

35
that discretion is shown. People v. Collins, 730 P.2d 293, 300 (Colo.

1986).

¶ 70 Under Crim. P. 24(a)(3), the “court may limit or terminate

repetitious, irrelevant, unreasonably lengthy, abusive or otherwise

improper examination.” For example, a trial court may limit voir

dire to prevent an attorney from “instruct[ing] the jury regarding the

law or the defendant’s theory of the case.” People v. Lybarger, 790

P.2d 855, 859 (Colo. App. 1989), rev’d on other grounds, 807 P.2d

570 (Colo. 1991). This is because “[t]he knowledge or ignorance of

prospective jurors concerning questions of law is generally not a

proper subject of inquiry for voir dire since it is presumed that the

jurors will be adequately informed as to the applicable law by the

instructions of the court.” Collins, 730 P.2d at 301. In Collins, the

division concluded that the trial court properly limited the scope of

voir dire, including placing limitations on the irrelevant hypothetical

that defense counsel attempted to use. Generally, it is not an

abuse of discretion for the trial court to limit questions on voir dire

relating to the law. Id.

36
B. Discussion

¶ 71 The prosecution’s voir dire regarding complicity consisted of

improper questions relating to the law and the prosecution’s

putative theory of defendant’s guilt. Moreover, the prosecution’s

explanation of complicity was incomplete and somewhat misleading.

The questions were irrelevant given the fact that the prosecution

was not pursuing liability based on complicity at the opening of the

trial. And the “lengthy” questioning, as the majority describes it,

was in my view unreasonable. The trial court failed to exercise its

authority under Crim. P. 24(a)(3) to restrict the questioning. And

that error led to the next error, which resulted in harm to

defendant.

II. Failure to Instruct the Jury on Complicity

¶ 72 A defendant can be found liable as a complicitor even if

someone else committed the crime, if the defendant aided, abetted,

advised, or encouraged him in his criminal act or conduct, with

both an awareness of the required circumstances and an intent that

the other person proceed with that conduct. People v. Childress,

2015 CO 65M, ¶ 37.

37
¶ 73 Although the prosecution did not tender initial jury

instructions containing a complicitor theory of liability as to

defendant, it obviously began to rethink that position by the time of

the voir dire. During the trial, both the prosecution and the defense

offered some evidence that defendant was acting as a complicitor of

Mayfield.

¶ 74 Mayfield testified that the victim owed twenty dollars to

defendant for “fronted” drugs. When Mayfield and defendant

encountered the victim, defendant said to Mayfield, “[C]ome on, this

motherfucker thinks I’m playing with him, go get my money.”

Mayfield stated that he thought he and defendant were going into

the alley to beat the victim up in order to collect the money.

Mayfield said defendant told him to act as a lookout. Mayfield

denied knowing defendant had a gun that evening. But according

to Mayfield, the encounter resulted in the victim being shot twice in

the chest. Mayfield said that while he could not identify a shooter,

he agreed that no person other than defendant could have shot the

victim. Mayfield also testified that he later helped defendant

retrieve the gun and defendant asked him to help eliminate the gun

residue from defendant’s hands.

38
¶ 75 But according to a police interview admitted at trial, defendant

told the officer that it was Mayfield to whom the victim owed money

for drugs, and as they were walking toward the alley, Mayfield said

“he was going to lay [the victim] down,” meaning defendant thought

Mayfield was going to shoot the victim.

¶ 76 Taken together, this testimony provided some evidence that

defendant and Mayfield were complicit in the murder of the victim.

To be sure, the evidence conflicted as to which of them did the

actual shooting, and that would be a question for the jury to

resolve. Given the low threshold for instructing the jury on

complicity, I conclude the trial court erred by rejecting the

prosecutor’s instruction on a complicity theory.

¶ 77 As the People state in their opening brief, “if the district court

had applied the correct standard, an instruction on complicity

would have been given in this case.” In support of this assertion,

the People cite People v. Whiteaker, 2022 COA 84 (cert. granted Apr.

17, 2023), which applies the familiar “any evidence” threshold to a

prosecutorial request for an initial aggressor instruction. Id. at

¶ 38. In Montoya v. People, 2017 CO 40, ¶ 18, the supreme court

signaled that, for a conviction to be based on a theory of complicitor

39
liability, “there must merely be evidence from which the trier of fact

can find that the defendant was legally accountable for the behavior

of another actor.”

¶ 78 The trial court recognized that there was some evidence to

support a complicitor theory, saying that “there may be indeed

some information that might support some kind of proposition of

complicity theory.” Nonetheless, it denied the prosecution’s request

to instruct on a complicitor theory.

III. Denial of Defendant’s New Trial Motion

¶ 79 When the jury returned its verdict of guilty as to second degree

murder but found defendant did not use or possess a deadly

weapon, defendant promptly filed a motion to vacate the verdict on

the basis of inconsistency. Defendant contended that the jury must

have found him guilty on a complicitor theory, despite no such

instructions being given to the jury. The prosecution objected to


Defendant submitted juror affidavits asserting that the jurors
convicted because they applied a complicitor theory. I agree with
the People that such affidavits are not admissible under CRE 606(b)
and should not be considered.

40
the motion, stating that “there is no evidence supporting this

assertion.”

¶ 80 The trial court denied the motion, but in doing so apparently

agreed in part with defendant’s argument that the jury applied a

complicity theory:

I think, frankly, that even individuals of
common sense, which we hope jurors always
are, kind of operate with a theory of complicity
in many situations in any event, especially
when they see two people who are essentially
together acting in a similar way. And, as has
been pointed out, three people going into a
dark alley and only two of them coming out,
clearly the jury could decide that whatever
may have happened in that particular alley,
Mr. Shockey should be responsible even if he
were not the one who directly pulled the
trigger, so to speak, on the weapon that was
used in this case.

¶ 81 The court rejected the argument that the verdicts were

inconsistent because “second degree murder does not necessarily

require the use of a deadly weapon.”

¶ 82 I, like the majority, disagree with the trial court and conclude

there is an inconsistency between the jury’s verdict and its answer

to the special interrogatory. I don’t think the answer negates an

element of the offense, but there is no logical explanation for the

41
result other than what the trial court hypothesized, but didn’t act

on: the jury applied a “common sense” theory of complicity. The

problem with the jury doing so is that it was not instructed on a

theory of complicity.6

¶ 83 And, as defendant argues on appeal, a person may not be

convicted on a theory that is not submitted to the jury. Chiarella v.

United States, 445 U.S. 222, 236 (1980) (we cannot affirm a

criminal conviction on the basis of a theory not presented to the

jury); see also Dunn v. United States, 442 U.S. 100, 106 (1979) (“To

uphold a conviction on a charge that was neither alleged in an

indictment nor presented to a jury at trial offends the most basic

notions of due process.”).

¶ 84 It is apparent that the jury’s verdict, based on the proceedings

taken as a whole, convicted defendant on the basis of a complicitor

theory. Given the events at trial, that result is not surprising. But

defendant’s conviction cannot be upheld on a complicitor theory

because it was not submitted to the jury.

6 I agree with the majority’s comment in footnote 4 that the jury

apparently did not follow the court’s instructions; instead it
developed a complicitor theory of its own making.

42
¶ 85 Accordingly, I agree with the majority that the jury verdict and

interrogatory response were faulty, but in my view they were

logically inconsistent and mutually exclusive. Thus, while I agree

with the majority that defendant’s conviction cannot stand, I would

reverse the conviction and grant defendant a new trial as he

requests as an alternative remedy.

43