People v. Gwinn

428 P.3d 727

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Michael Can GWINN, Defendant-Appellant.

Court of Appeals No. 16CA1884

Colorado Court of Appeals, Division VI.

Announced September 6, 2018

Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Nancy C. Johnson, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FREYRE

¶ 1 Defendant, Michael Can Gwinn, appeals his conviction for driving while under the influence of alcohol (DUI) as a felony. He contends that the trial court erred in (1) quashing eight subpoenas for witnesses who would have testified about problems with the Intoxilyzer 9000; (2) allowing the prosecution to impeach its own witness using leading questions; (3) admitting the express consent form; (4) refusing a jury instruction; and (5) denying his right to have a jury determine the existence of his prior DUI convictions beyond a reasonable doubt. We address and reject his first four contentions, and, as a matter of first impression, we conclude that he was not entitled to have a jury determine the existence of his prior DUI convictions. Accordingly, we affirm his conviction.

I. Background

¶ 2 One night after work, Gwinn rear-ended another car while driving home. Officer Trae Tripp responded to the accident and spoke with Gwinn. He smelled the odor of an alcoholic beverage on Gwinn’s breath, and observed that Gwinn had bloodshot eyes and slurred speech. Gwinn admitted drinking four beers before the accident occurred. Officer Tripp requested a DUI officer, and Officer Jude Perez arrived to provide assistance.

¶ 3 Officer Perez asked Gwinn if he would complete voluntary roadside maneuvers, and Gwinn refused. Gwinn then told Officer Perez that he drank three or four beers at a bar before the accident. Officer Perez explained to Gwinn that if he refused to take a chemical blood or breath test to determine his blood alcohol level, then he would lose his license for one year. Gwinn refused all tests, and Officer Perez arrested him.

¶ 4 After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to thirty months of probation, two years of work release, and ninety days in the county jail.

II. No Error in Quashing Subpoenas

¶ 5 Gwinn first contends that the trial court’s refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. We discern no error.

A. Standard of Review and Applicable Law

¶ 6 A trial court’s decision to exclude evidence, including witness testimony, will not be disturbed on review absent an abuse of discretion. People v. Rodriguez , 209 P.3d 1151, 1160-61 (Colo. App. 2008), aff’d , 238 P.3d 1283 (Colo. 2010). A court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law. Id. at 1161.

¶ 7 All relevant evidence is admissible unless otherwise provided by constitution, statute, or rule. CRE 402 ; People v. Rath , 44 P.3d 1033, 1038 (Colo. 2002) ; People v. Cordova , 293 P.3d 114, 118 (Colo. App. 2011). Evidence is relevant where it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401 ; Cordova , 293 P.3d at 118.

¶ 8 The exclusion of evidence may, in some circumstances, implicate a defendant’s Sixth Amendment right to present a defense; however, every restriction on a defendant’s evidence is not constitutional error. Krutsinger v. People , 219 P.3d 1054, 1062 (Colo. 2009). Instead, "the right to present a defense is not absolute; it requires only that the accused be permitted to introduce all relevant and admissible evidence." Rodriguez , 209 P.3d at 1160. Thus, a defendant must prove that the evidence is both relevant and admissible. See Taylor v. Illinois , 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) ("The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.").

¶ 9 The parties dispute whether this alleged error should be reviewed for constitutional harmless error or harmless error. We need not resolve this dispute because we conclude there was no error.

B. Analysis

¶ 10 Knowing that the jury would be instructed that it could consider his refusal to submit to a chemical test when it determined guilt, see § 42-4-1301(6)(d), Gwinn sought to introduce the testimony of eight current and former employees of the CDPHE to show that the Intoxilyzer 9000 breath test machine did not satisfy the requirements of section 42-4-1301.1(2)(a), C.R.S. 2017, and, thus, did not produce an accurate result. Gwinn’s counsel argued that the jury should be permitted to infer from this testimony that Gwinn’s refusal was supported by the absence of a competent intoxilyzer machine. The CDPHE moved to quash the witnesses’ subpoenas.

¶ 11 The trial court asked defense counsel whether Gwinn knew of the intoxilyzer’s alleged deficiencies or whether any other witness could establish that Gwinn knew of them. Counsel said she did not believe that was required since the prosecution could argue the negative inference based on no evidence. When pressed, counsel stated that she did not have any witnesses to establish Gwinn’s knowledge of the intoxilyzer’s purported deficiencies. The trial court granted the motion to quash finding that the testimony was irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time he refused to submit to chemical testing.

¶ 12 We discern no abuse of discretion in the trial court’s ruling. First, because Gwinn refused chemical testing and never actually blew into the Intoxilyzer 9000, the machine’s operability and accuracy were irrelevant. See Long v. Colo. Dep’t of Revenue , 2012 COA 130, ¶ 31, 296 P.3d 329 (when a breath test is refused, the operability of the breathalyzer is not at issue). And while the DUI statute allows a defendant to challenge the accuracy of a particular test, it only applies when the defendant actually submits to the test and questions its accuracy. § 42-4-1301(6)(c)(II), C.R.S. 2017; see also Long , ¶ 31 ("Once plaintiff refused to take the breath test after the deputy informed him that the breathalyzer was functioning properly, the operability of the breathalyzer was not at issue.").

¶ 13 Second, Gwinn failed to show that his reason for refusing to take a chemical test was related to his knowledge of problems with the Intoxilyzer 9000. Without this evidence, testimony about the intoxilyzer’s deficiencies did not make the negative inference from his refusal more or less probable. CRE 401. Indeed, such testimony could only be probative if Gwinn knew of the intoxilyzer’s alleged deficiencies and if this knowledge caused his refusal. Absent evidence of this knowledge, the jury could only speculate about the importance of the machine’s operability in relation to the evidence presented. Cf. People v. Salazar , 2012 CO 20, ¶ 17, 272 P.3d 1067 (noting that evidence "which has only the most minimal probative value, and which requires a jury to engage in undue speculation as to the probative value of that evidence" can be excluded (quoting People v. Welsh , 80 P.3d 296, 307 (Colo. 2003) ) ).

¶ 14 Gwinn also contends that the trial court’s ruling violated his Fifth Amendment right to remain silent. We disagree. The trial court stated:

[U]nless Mr. Gwinn takes the stand and testifies that he knew about the problems that you’ve just mentioned, ... if he takes the stand and says [that he] knew about all of those problems with the Intoxilyzer, and, therefore, [he] refused to take the breath test, it might be relevant. However, otherwise it’s absolutely not relevant. ...

I will not allow your client to testify about not taking the intoxilyzer unless he has a good faith basis to state on the record that he knew about all of these problems and that’s one of the reasons he didn’t take it. Or if you have some other witness who is going to testify that Mr. Gwinn knew about this.

Contrary to Gwinn’s assertion, the court simply explained to counsel the various avenues through which Gwinn’s knowledge could be established that would then make the evidence relevant for admission: e.g., through Gwinn’s own testimony or from a friend or family member who could establish that Gwinn knew of the intoxilyzer’s alleged deficiencies. Thus, while Gwinn’s testimony was one method of establishing knowledge and thereby relevance, it was not his only option.

¶ 15 Because the accuracy of the Intoxilyzer 9000 was not relevant, the court did not deprive Gwinn of his right to present a defense. See id. (explaining that the right to present a defense is limited to relevant and admissible evidence).

III. Prosecutor’s Impeachment Was Proper

¶ 16 Gwinn next contends that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, "under the guise of impeachment" where no impeachment occurred. We disagree.

A. Standard of Review and Preservation

¶ 17 A trial court’s ruling on evidentiary issues is reviewed for an abuse of discretion and will be upheld unless it is manifestly arbitrary, unreasonable, or unfair, or contrary to law. See Kinney v. People , 187 P.3d 548, 558 (Colo. 2008).

¶ 18 The Attorney General contends that Gwinn did not preserve his challenge based on improper leading questions and impeachment and that our review should be for plain error. We need not decide preservation because we conclude no error occurred.

B. Additional Facts

¶ 19 While questioning Officer Perez, the prosecutor asked, "Did you observe...