Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Jacob Shockey appealed his second-degree murder conviction. The Colorado Court of Appeals vacated the conviction, finding the prosecution failed to prove all elements of the offense and the jury’s finding Shockey didn’t possess, use or threaten to use a deadly weapon was inconsistent with its guilty verdict for second-degree murder.
Shockey was initially charged with first-degree murder and two crime-of-violence sentence enhancers. Before trial, the prosecution submitted proposed jury instructions, which didn’t include a complicity instruction. At the close of the evidence, the prosecutor tendered a complicity instruction 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, Shockey hadn’t 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 40 years in the custody of the Department of Corrections, consecutive to an unrelated sentence.
During the trial, the court instructed the jury to convict Shockey of second-degree murder, it had to find he knowingly caused the death of the victim. The prosecution’s entire theory of the case was that Shockey was the shooter and he caused the victim’s death, according to the opinion.
But by finding the prosecution did not prove beyond a reasonable doubt Shockey used, possessed or threatened to use a deadly weapon, the jury inconsistently concluded the prosecution had not proved Shockey was the shooter, according to the opinion.
The opinion continued, noting the record revealed an inconsistent finding concerning the identity of the shooter and causation. The appeals court judged the only way to reconcile these inconsistent findings was to apply a complicity theory to the facts, a legal theory the court rejected and for which the jury received no instruction.
The appeals court concluded the jury’s special interrogatory finding that the prosecution hadn’t proved Shockey used, possessed or threatened to use a gun negated the causation and identity elements of second-degree murder, and 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.
The appeals court vacated the judgment of conviction. As a result, the appeals court didn’t address Shockey’s remaining contentions.
Judge Richman concurred in part and dissented in part.
Richman agreed with the majority that Shockey’s conviction for second-degree murder can’t stand. But Richman noted he would reverse the conviction for a different error than what was found by the majority, and because the reversible error arose from the trial court’s rulings, he disagreed with the majority that the reversal precluded retrial.
James Duncan appealed his second-degree assault conviction. The Colorado Court of Appeals concluded sufficient evidence supported his conviction and affirmed the judgment.
Duncan was living with his partner in a hotel room, and an altercation occurred when his partner tried to end the relationship. The argument escalated, and Duncan struck his partner on the left side of their face, making contact with their left ear. Twelve days later, the partner was still unable to hear out of their left ear, and a doctor found a hole in their left eardrum likely caused by barotrauma, which is a sudden increase in air pressure that can perforate an eardrum.
Five months later, the partner returned for a follow-up appointment and told the doctor their hearing returned the day before. The doctor determined the partner’s hearing had returned to normal, although the partner claimed at trial they still could not hear low tones.
Duncan was charged with and convicted of second-degree assault for causing serious bodily injury.
He appealed, contending the jury had insufficient evidence to find he caused his partner an injury that carried a substantial risk of “protracted loss or impairment.” He argued the word “protracted” means “permanent” and the prosecution failed to present sufficient evidence his partner experienced a substantial risk of suffering permanent hearing loss as a result of the hole in their eardrum. Duncan also contended the statutory definition of serious bodily injury was unconstitutionally vague and the prosecutor committed misconduct during closing argument.
According to the opinion, the court found a “permanent” loss qualified as a “protracted” loss, and a loss did not need to be permanent to be protracted, it simply needed to be prolonged.
Viewing the evidence in a light most favorable to the prosecution, the court also concluded there was substantial and sufficient evidence for the jury to convict Duncan of second-degree assault.
The appeals court also declined to address Duncan’s claim the statute is unconstitutionally vague as applied and did not find plain error on the part of the prosecutor.
The appeals court affirmed the judgment.
Bartenders v. Department of Labor
Bartenders and More appealed the district court’s dismissal of its complaint for judicial review of the Colorado Department of Labor and Employment’s, Division of Labor Standards and Statistics decision that Bartenders was liable for fines under the Colorado Wage Claim Act. The Colorado Court of Appeals reversed the district court’s dismissal.
The district court found “Bartenders failed to timely file [its] complaint for judicial review … within the 35 day deadline … depriving [the] Court of subject matter jurisdiction” over Bartenders’ appeal.
Bartenders argued the district court erred by finding the decision informing Bartenders of its liability was mailed on April 12, 2022, and Bartenders’ time to appeal began to run on that date and deciding, in the alternative, Bartenders’ receipt of actual notice of the decision via email on April 12, 2022, was sufficient to start the clock for the appeal period.
The appeals court found Bartenders’ receipt of actual notice of the decision on April 12, 2022, did not inform it when the time for its appeal began to run because the decision didn’t contain a mailing date. The appeals court viewed the mailing of the decision as the only event that could start the time for Bartenders’ appeal. Without this critical information, Bartenders couldn’t determine the deadline for its appeal, according to the opinion.
The appeals court judged as a matter of fundamental fairness a party aggrieved by the decision of an administrative agency must be provided with notice of the deadline for its appeal, and under the Department of Labor’s reasoning, an administrative agency could force an aggrieved party to guess the deadline for the party’s appeal of the agency’s decision.
The opinion continued, because Bartenders’ receipt of actual notice of the decision on April 12, 2022, did not apprise it of the mailing date of the decision, the actual notice the division provided to Bartenders couldn’t start the 35-day time period for Bartenders’ filing of a complaint for judicial review.
The appeals court reversed the judgment and remanded the case to the district court to adjudicate Bartenders’ appeal on the merits.