Peo v. Marquez

Opinion

19CA0547 Peo v Marquez 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0547

Jefferson County District Court No. 16CR3203

Honorable Philip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Benjamin R. Marquez,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE BERGER

Yun and Vogt*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, 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. 2021.

1

¶ 1 A jury convicted defendant, Benjamin R. Marquez, of

misdemeanor driving under the influence (DUI) and careless

driving.

1

Marquez appeals those convictions, as well as his

conviction for felony DUI. While we agree that the felony DUI

conviction must be reversed, we do not reach Marquez’s equal

protection challenge to the felony DUI provision and reject his

remaining arguments. We therefore affirm the misdemeanor DUI

and careless driving convictions, reverse the felony DUI conviction,

and remand for further proceedings.

I. Relevant Facts and Procedural History

¶ 2 Deputy Dylan Mahonee observed Marquez driving erratically

and attempted to make a traffic stop. Although Marquez eventually

stopped, he did not immediately pull over, nearly hitting a fire

hydrant and sign in the process. During the traffic stop, Deputy

Mahonee observed an empty beer can on the passenger floorboard.

¶ 3 Before Deputy Mahonee could read him the Express Consent

advisement, Marquez demanded a breath test. After the deputy

1

The trial court dismissed a charge for illegal possession or

consumption of alcohol in a motor vehicle, and Marquez pleaded

guilty to driving after revocation. Because Marquez does not

challenge that conviction on appeal, we do not disturb it.

2

finished reading the advisement, Marquez then demanded a blood

test. To perform the blood test, Deputy Mahonee took Marquez to

jail, where Marquez refused a blood test and demanded a breath

test. Because of these multiple conflicting requests, he did not give

Marquez either test.

¶ 4 Marquez’s son testified at trial. He claimed that the empty

beer can was his and that he’d been drinking in the vehicle earlier

that night.

¶ 5 A jury convicted Marquez of misdemeanor DUI and careless

driving. The court held a separate hearing and found that Marquez

had three prior intoxicated driving-related convictions. The court

therefore convicted him of felony DUI and sentenced him

accordingly.

II. Analysis

A. Felony DUI

¶ 6 The parties do not dispute, and we agree, that because the

trial court (instead of the jury) found that Marquez had three prior

convictions, the felony DUI conviction cannot stand. Linnebur v.

People, 2020 CO 79M, ¶ 2.

3

¶ 7 The parties dispute, however, whether the proper remedy is to

reverse or vacate the felony DUI conviction. We reverse. The error

did not affect Marquez’s misdemeanor DUI or careless driving

convictions, so the trial court must resentence him on remand. “If,

in lieu of resentencing, the prosecution seeks retrial of the felony

DUI charge and [Marquez] raises a double jeopardy defense, the

trial court must rule on that defense.”

2

Id. at ¶ 32.

2

The supreme court’s recent opinion in People v. Viburg, 2021 CO

81M, ¶ 2 (Viburg II), does not alter our disposition or remand order.

Viburg II was an original proceeding under C.A.R. 21 following this

court’s reversal of Viburg’s felony DWAI conviction, People v. Viburg,

2020 COA 8M, ¶ 1 (Viburg I). This court declined to address

Viburg’s double jeopardy claim because we did not know if the

prosecutor would, on remand, seek to retry Viburg on the felony

charge and because, fundamentally, a double jeopardy bar is a

defense to a criminal prosecution. After the supreme court denied

certiorari in Viburg I, the prosecutor sought to retry Viburg on the

felony charge, and the trial court ruled that a retrial was proper.

Viburg II, ¶¶ 6-7. Viburg then filed an original proceeding in the

supreme court to challenge the trial court’s ruling, and the supreme

court issued a rule to show cause. Id. at ¶ 8. In its opinion on the

merits of the double jeopardy ruling, the supreme court held that

principles of double jeopardy (as well as principles of due process

and Colorado’s mandatory joinder statute) did not bar a jury trial of

the felony DWAI charge. Id. at ¶¶ 23, 27, 28. Obviously, after this

case is returned to the district court, if the prosecutor seeks to retry

Marquez for felony DUI, the supreme court’s decision in Viburg II

will be dispositive on the double jeopardy question. But that does

not mean that we should on direct appeal address a double

jeopardy challenge that may be moot if the prosecutor chooses not

to retry Marquez for felony DUI.

4

¶ 8 Because we reverse the felony DUI conviction, we do not

decide Marquez’s unpreserved argument that the felony DUI

provision violates equal protection. But see, e.g., People v. Tun,

2021 COA 34, ¶ 18 (rejecting a similar equal protection challenge to

the felony DUI provision).

B. Marquez’s Remaining Claims of Error

¶ 9 Because Marquez’s remaining claims of error may affect his

misdemeanor DUI and careless driving convictions, we address

those arguments.

1. Judicial Questioning

¶ 10 Marquez argues that the trial court reversibly erred when it

allegedly stepped into a prosecutorial role by asking a witness one

question.

¶ 11 In response to counsels’ questioning, Marquez’s son testified

that the empty beer can was his. The jury then also asked if the

empty beer can was his and the court posed the question to him.

¶ 12 After he again said yes, the court said, “Can you describe it for

the jury.” The son identified three beer brands, none of which

matched the empty can. Defense counsel then asked whether the

beer can could have been a fourth brand (it was), to which the son

5

said yes. In closing argument, the prosecutor emphasized the son’s

initial answer regarding the can’s brand.

¶ 13 It is unclear whether the parties agree on the applicable

standard of review. We do not need to decide that question because

there was no error. But see People v. Hall, 2021 CO 71M, ¶¶ 16-17

(applying abuse of discretion review to claims of judicial misconduct

in a bench trial). Marquez did not preserve this issue, so we reverse

only for plain error. Hagos v. People, 2012 CO 63, ¶ 14.

¶ 14 Trial courts may ask witnesses questions. CRE 614(b). But

courts may not act as an advocate: the test is “whether the trial

judge’s conduct so departed from the required impartiality as to

deny the defendant a fair trial.” People v. Adler, 629 P.2d 569, 573

(Colo. 1981). “A trial court has the prerogative and, sometimes, the

duty to question witnesses called by a party. Such questions are

not improper where the purpose is to develop more fully the truth

and to clarify testimony already given.” People v. Ray, 640 P.2d

262, 264 (Colo. App. 1981) (citations omitted).

¶ 15 The court’s question did not so depart from the required

impartiality as to deny Marquez a fair trial. The court asked only

one question that more fully developed a topic already addressed by

6

both counsel and the jury. Id. The question was also open-ended

and neutrally phrased. Although the answer may have been

damaging to Marquez, that does not affect the propriety of the

court’s question.

¶ 16 To the extent Marquez separately challenges the prosecutor’s

references in closing to the answer, we reject that argument.

Prosecutors may comment on the evidence, and again, although the

answer may have been damaging, that does not mean that the

court’s question was improper.

2. Prosecutorial Misconduct

¶ 17 Marquez also contends that the prosecutor engaged in

prosecutorial misconduct.

a. Standard of Review, Preservation, and Applicable Law

¶ 18 When reviewing prosecutorial misconduct claims, we first

“determine whether the prosecutor’s questionable conduct was

improper based on the totality of the circumstances,” before

determining “whether such actions warrant reversal according to

the proper standard of review.” Wend v. People, 235 P.3d 1089,

1096 (Colo. 2010).

7

¶ 19 Marquez did not preserve any claims of prosecutorial

misconduct. Therefore, we review only for plain error, and reverse

only if the conduct was flagrantly, glaringly, or tremendously

improper. Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.

2005).

¶ 20 Prosecutors commit misconduct when they misstate the

evidence, lower the burden of proof, or make assertions based on

personal knowledge. See People v. Nardine, 2016 COA 85, ¶ 35;

People v. Van Meter, 2018 COA 13, ¶ 31; Domingo-Gomez, 125 P.3d

at 1049. To determine the propriety of a statement, we consider the

language used, the statement’s context, and the evidence

supporting the conviction. Domingo-Gomez, 125 P.3d at 1050.

b. Misstating the Evidence

¶ 21 Marquez first claims that the prosecutor misstated the

evidence when she stated (during opening argument and while

questioning Deputy Mahonee) that Marquez actually hit a fire

hydrant and sign even though the undisputed evidence was that he

nearly hit them.

8

¶ 22 The Attorney General has not cited any evidence that would

support the prosecutor’s statements. We therefore agree that the

prosecutor misstated the evidence.

c. Analogies

¶ 23 Marquez’s next claim of prosecutorial misconduct involves two

analogies that the prosecutor used during voir dire to describe

circumstantial evidence. Marquez also argues that the prosecutor

aggravated the impact of the allegedly improper analogies when she

referenced Occam’s Razor during closing argument and said, “The

simplest explanation is usually the right one.”

¶ 24 During voir dire, the prosecutor said:

So there are two types of evidence. There’s

direct and circumstantial. Circumstantial --

the way I generally describe that is if I tell you

I have something behind my back. It’s red.

It’s round. It’s a fruit. It has seeds. It grows

on trees. One a day keeps the doctor away.

It’s the main ingredient in America’s favorite

pie, and we give these to our teachers. Do you

know what I have behind my back, not having

seen it?

¶ 25 As some prospective jurors pushed back on whether the item

was definitively an apple, the prosecutor said she was using the

analogy to ask about “a bar to being able to listen.” She went on:

9

[During trial,] I’m going to ask you to look at

the law. I’m going to ask you to listen to the

testimony and then draw some conclusions

about what happened.

An example, I guess, in regular life would be if

you were babysitting, and there were red soda

. . . and you told the person you’re babysitting,

“Don’t drink that,” and they said, “Okay.”

And then you went upstairs and came back

down, and they had a red ring on their lips,

and the red pop was gone. Could you draw a

conclusion from that about what happened?

[Prospective Juror]: Yes.

[Prosecutor]: Okay. So that’s similar to what

I’m going to be asking you to do today. I’m

going to be asking you to make observations,

look at the circumstances surrounding the

string of observations, and draw some

conclusions.

¶ 26 These analogies were not improper. The prosecutor described

the difference between direct and circumstantial evidence.

Marquez, however, argues that when the prosecutor pushed back

on some of the prospective jurors’ responses to the analogies, she

lowered the burden of proof.

¶ 27 We disagree. Rather, the prosecutor discussed the concept of

drawing reasonable inferences from circumstantial evidence, which

was not close to constituting an improper analogy. Cf., e.g., Van

10

Meter, ¶ 31 (finding prosecutorial misconduct by repeatedly

analogizing to a puzzle).

¶ 28 Nor was the reference to Occam’s Razor improper when read in

context. The prosecutor immediately followed up by telling the

jurors to ask themselves what evidence was and was not before

them before saying that “reasonable doubt is not vague or

speculative. And that’s exactly what we were given by the

defendant’s witnesses.” In context, the prosecutor argued only that

the jury should make reasonable inferences based on the evidence.

That was entirely proper.

d. Personal Knowledge

¶ 29 Marquez’s last claim of prosecutorial misconduct is that the

prosecutor cited evidence outside the record when she said that she

had previously been pulled over and that she had not thought it

was a good idea to get out of the car when an officer was next to it.

¶ 30 We agree that these statements were improper. They were

based on the prosecutor’s personal experience and were not

supported by any evidence admitted at trial.

11

e. Reversal

¶ 31 Although we agree that the prosecutor made improper

statements, we conclude that the statements do not individually or

cumulatively warrant reversal.

3

¶ 32 The prosecutor’s misstatements regarding hitting the fire

hydrant and sign were corrected when Deputy Mahonee testified

that Marquez did not actually hit a fire hydrant or sign. Deputy

Mahonee’s testimony therefore corrected the misstatements, and in

any event, the statements did not so undermine the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

conviction. Domingo-Gomez, 125 P.3d at 1053.

¶ 33 The prosecutor’s statements regarding her personal experience

were, at best, fleeting. Moreover, while the statements referenced

facts not in evidence, prosecutors are entitled to argue that jurors

should use their own common sense and life experiences when

3

Marquez argues that the alleged prosecutorial misconduct

individually and cumulatively warrants reversal, in addition to his

claim of cumulative error under Howard-Walker v. People, 2019 CO

69. We assume, without deciding, that such a claim of cumulative

prosecutorial misconduct is cognizable apart from Howard-Walker.

12

deliberating. The statements were therefore not flagrantly,

glaringly, or tremendously improper. Id.

¶ 34 Even if we consider the cumulative impact of the statements,

Marquez still received a fair trial. The misstatements therefore do

not warrant reversal.

3. Jury Instructions

¶ 35 Marquez also argues that a jury instruction regarding refusal

to submit to a chemical test unduly emphasized that evidence and

should have been supplemented with additional language.

¶ 36 Based on Marquez’s ultimate refusal of the blood test that he

demanded, the prosecution requested, and the court gave, the

following instruction:

You are instructed that any person who drives

any motor vehicle in the State of Colorado may

be required to submit to a chemical test for the

purpose of determining the alcoholic content of

his or her blood. If a person refuses to submit

to such chemical test, then the jury may

consider such refusal along with all other

competent evidence in determining the

defendant’s guilt or innocence.

If you find that the defendant refused to take a

chemical test of the defendant’s blood or

breath, you may consider this refusal along

with other evidence in determining whether the

defendant is guilty of the offense of Driving

13

under the Influence or Driving While Ability

Impaired.

¶ 37 Defense counsel proffered additional instructions, which,

among other things, would have allowed the jury to infer innocence

if the jury found that Marquez requested a breath test, but the

officers refused to give him one.

¶ 38 We review de novo whether the jury instructions correctly

informed the jury of the applicable law. People v. Roberts-Bicking,

2021 COA 12, ¶ 17. We review a court’s decision to give any

particular instruction for abuse of discretion, which occurs if the

decision was “manifestly arbitrary, unreasonable, or unfair.” Id.

(quoting People v. Trujillo, 2018 COA 12, ¶ 11).

¶ 39 We need not decide whether Marquez preserved this issue

because we perceive no error and reject Marquez’s arguments as

foreclosed by the Colorado Supreme Court’s holding in Cox v.

People, 735 P.2d 153, 159 (Colo. 1987).

¶ 40 First, Marquez argues that Cox’s language regarding this issue

was dicta. We disagree. Evidence that someone refused to take (or

complete or cooperate with completing) a chemical test is

admissible in a DUI trial. § 42-4-1301(6)(d), C.R.S. 2021. The Cox

14

court stated that it had granted certiorari on the propriety of

instructing the jury that evidence of refusal could be used to

determine guilt. 735 P.2d at 154. The court held that the

instruction was proper. Id. at 159. Irrespective of the brevity of the

court’s analysis, it is a holding of the supreme court and we are

bound by it. See People v. Allen, 111 P.3d 518, 520 (Colo. App.

2004) (“[W]e are bound by the decisions of the Colorado Supreme

Court.”).

¶ 41 Second, to the extent that Marquez makes an argument

outside of Cox’s holding, this instruction did not unduly emphasize

evidence of his failure to take a test. The instruction that the

supreme court expressly approved in Cox stated, “[i]f a person

refuses to submit to such chemical test, then the jury may consider

such refusal along with all other competent evidence in determining

the Defendant’s guilt or innocence.” 735 P.2d at 155.

¶ 42 The instruction here told the jurors that if they found Marquez

refused a test, “you may consider this refusal along with other

evidence in determining” his guilt. (Emphasis added.) The court’s

instruction, though lengthier, was an accurate articulation of the

15

law from Cox and informed the jury that it could consider the

refusal if it found that Marquez refused the test.

4

¶ 43 Third, we reject Marquez’s argument that the court should

have given defense counsel’s additional instructions. As noted

above, the instruction accurately stated the law from Cox. The

court’s denial of Marquez’s additional instruction that the jury

could infer innocence from his requests for a test was not an abuse

of discretion under these circumstances.

¶ 44 The trial court’s instruction and its refusal to give any

additional instruction were appropriate under Cox.

4. Cumulative Error

¶ 45 We have already concluded that the two instances of

prosecutorial misconduct do not cumulatively warrant reversal. We

have also rejected the other claims of error. Therefore, Marquez’s

claim of cumulative error fails. Howard-Walker v. People, 2019 CO

69.

4

Marquez’s argument that the instruction is not in the Model Jury

Criminal Instructions is inconsequential. The court’s instruction

was consistent with Cox v. People, 735 P.2d 153, 159 (Colo. 1987),

which, unlike the model instructions, is binding authority.

16

III. Disposition

¶ 46 The felony DUI conviction is reversed, and the case is

remanded for further proceedings. The misdemeanor DUI and

careless driving convictions are affirmed. On remand, if the

prosecution elects not to retry Marquez for felony DUI, then the trial

court must resentence him for the misdemeanor DUI conviction. If

the prosecution elects to retry Marquez for felony DUI, and if

Marquez interposes a double jeopardy bar, then the court must

decide that question before retrial.

JUDGE YUN and JUDGE VOGT concur.