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.


                                       1
¶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


                                     2
  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


                                     3
  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.




                                       4
¶ 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


                                    5
  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.


                                    6
  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.


                                    7
¶ 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


                                     8
            (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


                                     9
  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


                                   10
  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.




                                    11
             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



                                     12
  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.




                                    13
