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.
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¶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
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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
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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.
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¶ 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
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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.
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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.
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¶ 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
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(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
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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
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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.
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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
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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.
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