In a rare finding of prosecutorial misconduct, Colorado’s second-highest court reversed a man’s convictions for attempted murder and assault on Thursday because an El Paso County prosecutor misled jurors into thinking defendant Charles Eugene Jefferson was responsible for the victim’s failure to testify at trial.

Andrew Lower, a deputy district attorney, told jurors the reason the alleged victim had not testified was because Jefferson “succeeded” in deterring him from taking the witness stand. In reality, the victim did not speak because he was also implicated in a potential crime and wanted to avoid incriminating himself – a fact Lower knew but did not tell jurors.

“The prosecution’s characterization of (the victim’s) choice not to testify was grossly misleading and inaccurate and warrants reversal on its own,” wrote Judge Craig R. Welling for a three-member panel of the Court of Appeals.

The appellate judges also found District Court Judge Gregory R. Werner improperly allowed a police officer to effectively give the victim’s alleged account of the crime – an account Lower referenced repeatedly to the jury.

Jefferson stood trial in 2019 on charges that he caused a car accident with the victim, then fired multiple shots. Once in jail, Jefferson asked his girlfriend for help in getting the victim to not testify or to recant his accusation that Jefferson was the shooter.

Jurors convicted Jefferson of attempted murder, attempted assault, witness tampering and obstructing a peace officer. He received a 120-year prison sentence.

The victim did not testify at trial. At the time of the shooting, the victim had a prior felony conviction, making him ineligible to possess a firearm, but there was evidence he fired a gun during the encounter. His lawyer advised him to invoke his Fifth Amendment right against self-incrimination, given that prosecutors did not offer the victim immunity in exchange for his testimony.

Nevertheless, Officer Jared Butcher, who responded to the accident site, testified about what the victim told him. Butcher recounted the victim’s version of events in detail, said the victim identified Jefferson “with 100% certainty,” and agreed that Jefferson, sitting in the courtroom, was the shooter – according to the victim.

The defense objected to Butcher’s testimony for introducing hearsay, meaning out-of-court statements that are intended to prove the truth. Werner overruled the objection. He later clarified that jurors could only use the victim’s alleged statements when considering whether Jefferson tried to tamper with a witness who would have identified him as the shooter.

During closing arguments, Lower repeatedly referenced the officer’s testimony as proof of the victim’s “story.” In doing so, he misled jurors about why the victim was absent, and also suggested – falsely – there was more than one witness who was prepared to testify.

“You didn’t hear from those people because of him,” Lower said, referring to Jefferson. The defendant “basically made sure you didn’t get to hear any of that testimony.” Lower added that the victim’s absence was proof Jefferson “succeeded” in his witness tampering.

The threshold is high for reversing a conviction based on a prosecutor’s misconduct at trial. The actions must be “flagrantly, glaringly or tremendously improper,” given the leeway prosecutors have to make their arguments.

The Colorado Attorney General’s Office maintained on appeal that because Jefferson tried to deter the victim from testifying, and the victim did not end up testifying, Lower’s characterization of events was acceptable.

“Any misstatements were minor,” wrote Assistant Attorney General Patrick A. Withers.

The Court of Appeals panel, however, found two critical problems. First, Butcher’s testimony about the shooting itself was unnecessary to show Jefferson was guilty of witness tampering. By allowing the officer to narrate what the victim allegedly said about the shooting, Jefferson could not cross-examine his accuser. To compound the problem, Lower repeatedly cited the victim’s secondhand story to the jury as factual.

“By admitting the hearsay statements, the trial court permitted the prosecution to do indirectly what it could not do directly – admit (the victim’s) statements and build an attempted murder and attempted assault case around them,” Welling wrote in the May 25 opinion.

Second, Lower’s suggestion that the victim would have testified if not for Jefferson’s tampering efforts was untrue.

“The errors here weren’t fleeting – they fed into one another,” explained Welling. “It’s impossible to disentangle the effect of these errors from the entirety of Jefferson’s trial.”

Disregarding the victim’s alleged account of the shooting, the panel concluded the evidence, albeit circumstantial, could still support a charge of attempted murder and attempted assault. It ordered a new trial for Jefferson. His convictions for witness tampering and obstruction were not challenged on appeal.

A spokesperson for District Attorney Michael Allen said the Court of Appeals’ decision is “under review by our office.” Lower died in 2021.

The case is People v. Jefferson.