Cash & the Legislation: Mistaken-identity homicide raises authorized questions – Colorado Springs Gazette

This column doesn’t usually deal with criminal law matters, but every so often something comes along I find interesting enough to want to share. This time, it’s a case decided by the Colorado Supreme Court in September, People v. Jackson.

The facts go like this. On a dark night in December 2011, a gang in the Westminster area decided to carry out an assassination of a member of a rival gang. The intended victim was E.O. However, the gunman mistook Y.M. for E.O. and killed Y.M. instead. (Y.M. happened to live in the same apartment complex as E.O. and drove a similar-colored car.) Although Jackson wasn’t the gunman, he was part of the assassination plot and was present at the time of the shooting, so he was charged with the first-degree murder of Y.M., just like the gunman. Jackson was also charged with the attempted murder of E.O., the intended victim. He was convicted of both crimes and received a lengthy sentence for each.

Jackson appealed to the Colorado Court of Appeals, based on the constitutional doctrine of double jeopardy, which, among other things, says you can’t be sentenced twice for the same criminal act. The Court of Appeals agreed with Jackson; prosecutors then appealed that decision to the Supreme Court, arguing that Jackson could be (and should be) convicted of both crimes and receive two sentences.

That appeal caused the Supreme Court to spin off into a scholarly discussion of the difference between a mistaken identity murder and a bad aim murder. In a mistaken identity murder, the victim was mistaken for someone else. In a bad aim murder, the gunman shot at the person he wanted to kill but, because of poor marksmanship, killed someone else. The law ties itself in knots here because intent is an element of the crime of first-degree murder. Thus, if you kill B, who you had no intent to kill, with your intent being to kill A, who was not harmed, do you commit murder? Do you commit attempted murder of A, the unharmed intended victim?

In deciding the case, the court first discredited a doctrine called “transferred intent,” sometimes used by courts (including the Court of Appeals) to get a killer’s intent back in line with the victim’s identity. The court called this doctrine a legal fiction and of no utility in deciding these cases. Adding a folksy touch to its opinion, the court said the doctrine of transferred intent was as useless as “a screen door on a submarine.” The court also said Colorado had no need for the transferred intent doctrine because, under this state’s first-degree murder statute, as long as the killer had an intent to kill someone, that was enough for a conviction.

In the end, the Supreme Court agreed with the Court of Appeals that sentencing Jackson for both the first-degree murder of Y.M. and the attempted murder of E.O. did, in fact, violate his double jeopardy rights under the U.S. and Colorado constitutions. The court said: “The shooter did not attempt to kill E.O. when he aimed at and shot Y.M. Rather, in aiming at and shooting Y.M., the shooter intended and attempted to kill Y.M., the same person he actually killed. That the shooter wanted to kill E.O. and mistakenly believed Y.M. was E.O. is of no moment.” And, the court said, “in a mistaken identity case, there is only one victim – the person the shooter aimed at and shot with the intent to kill, albeit by mistake.”

Although Jackson has now finally won his appeal and will only receive one sentence, he’s still going to be in prison for a long time. That’s because the sentence he received — for the first degree murder of Y.M. — is life in prison, without possibility of parole.

Jim Flynn is with the Colorado Springs firm of Flynn & Wright. You can contact him at

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