Colorado’s second-highest court agreed last month that Arapahoe County jurors disobeyed their instructions, produced a verdict that did not make sense and, as a result, the defendant’s murder conviction must be overturned.

However, the three-judge panel for the Court of Appeals disagreed over who bore the most blame for the contradictory verdict and whether Jacob Alexander Shockey could be tried again for homicide.

Shockey stood trial for the 2017 killing of Terrence G. Davis in Aurora, stemming from a drug dispute. Two men, Shockey and Parus Mayfield, were both present, but each said the other was responsible for shooting Davis. Witness testimony was unreliable and there was evidence suggesting Shockey left the scene prior to Davis’ murder.

Shockey’s jurors ultimately convicted him of second-degree murder. However, the jury also returned a special form aimed at enhancing Shockey’s sentence, which asked if Shockey used or possessed a deadly weapon.

No, he did not, the jury responded.

With its guilty verdict, “the jury found beyond a reasonable doubt that Shockey shot the victim,” wrote Judge Rebecca R. Freyre in the panel’s Dec. 21 opinion. “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.”

The only way the jury could have logically reached that conclusion, she elaborated, was by deeming Shockey a “complicitor” – a legal theory holding someone guilty even if another person actually committed the crime. Problematically, the trial judge never instructed jurors to consider the possibility that Mayfield shot the victim and Shockey was simply his accomplice.

Judge David J. Richman wrote separately to pinpoint how the problem unfolded, in his view. The prosecutor questioned jurors at length about complicity during jury selection, and the trial judge declined to stop her. Then, the judge refused to give an instruction about complicity. Finally, even after acknowledging the jury relied on complicity to reach its verdict, the judge rejected a new trial.

There was a “chain of errors that led to the inconsistent verdict,” Richman argued.

Case: People v. Shockey

Decided: December 21, 2023

Jurisdiction: Arapahoe County

Ruling: 3-0 for reversing conviction; 2-1 for prohibiting a new trial

Judges: Rebecca R. Freyre (author)

David H. Yun

David J. Richman (partial dissent)

‘You feel good about complicity?’

Under a theory of complicity, a defendant can be found guilty for another person’s crime if, among other things, he “aided, abetted, advised, or encouraged” the offense. 

Although the government advanced the narrative that Shockey alone was the shooter, prosecutor Victoria Klingensmith spent a significant portion of jury selection asking jurors to think about and react to the idea of complicity. She raised the hypothetical scenario of three bank robbers, one of whom is the lookout and another who is the getaway driver. Her goal was to illustrate that they, too, could be guilty of robbery even if they never went inside the bank.

“You’re OK with that?” Klingensmith, who recently became a trial judge in Arapahoe County, asked one juror.

“They’re all still complicit,” the juror acknowledged.

Although the defense objected on the grounds that jurors would not be asked to evaluate complicity, then-District Court Judge Michael Spear called Klingensmith’s questioning an “opportunity for jurors to kind of break the ice.” He allowed her to continue.

Several more jurors chimed in to say they understood and agreed with a complicity theory.

“So, you feel good about complicity?” Klingensmith pressed.

“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,” a juror said.

At the end of trial, the prosecution asked Spear to instruct jurors they could find Shockey guilty as a complicator. Spear refused, reasoning the evidence did not support the idea that Shockey and Mayfield were both involved in the murder. Giving such an instruction would “completely confuse” the jury, he said.

Jurors ultimately returned a verdict finding Shockey guilty, but not the shooter. 

The defense subsequently obtained statements from two jurors who admitted that their verdict was “based upon the discussion of complicity during jury selection.” Shockey then moved to overturn his conviction.

Spear denied the request, even as he acknowledged jurors likely went beyond their instructions and found “Mr. Shockey should be responsible even if he were not the one who pulled the trigger.”

Inconsistent and mutually exclusive

On appeal, the Colorado Attorney General’s Office insisted that even if the jury’s verdict was logically inconsistent, it was not legally inconsistent. Because Shockey could have contributed to Davis’ death, even if Mayfield actually fired the gun, there was no need to overturn the conviction.

All three Court of Appeals judges disagreed.

“The prosecution’s entire theory of the case was that Shockey was the shooter,” explained Freyre. 

Writing for herself and Judge David H. Yun, Freyre concluded not only that Shockey’s murder conviction could not stand, but that prosecutors could not try him again for Davis’ killing. Because jurors had determined Shockey was not the shooter, the prosecution did not prove its case beyond a reasonable doubt. Consequently, the verdict effectively amounted to an acquittal, triggering the constitutional prohibition against double jeopardy.

Richman, a retired judge sitting on the panel at the chief justice’s assignment, disagreed that the government could not put Shockey on trial again. While the verdict was “logically inconsistent and mutually exclusive,” jurors nonetheless found Shockey caused the victim’s death. A guilty verdict was valid, Richman reasoned, but only if jurors viewed Shockey as a complicitor.

“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,” Richman wrote.

He proceeded to criticize Spear for allowing Klingensmith to take an “unreasonable” amount of time acclimating jurors to the “irrelevant” idea of complicity. Spear then declined to instruct the jury about complicity, even though “some evidence” supported that notion.

Finally, Spear “didn’t act on” the problem of Shockey’s jury resorting to “a complicitor theory of its own making,” Richman added.

The decision vacated Shockey’s 40-year prison sentence. Mayfield, the other suspect, pleaded guilty to a lesser offense, testified against Shockey and was released on parole in 2021.

The case is People v. Shockey.