People v. Griego, Supreme Court Case No. 15SC448

Citation409 P.3d 338
Decision Date22 January 2018
Docket NumberSupreme Court Case No. 15SC448
Parties The PEOPLE of the State of Colorado, Petitioner v. Isidore GRIEGO, Respondent
CourtSupreme Court of Colorado

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Katharine Gillespie, Senior Assistant Attorney General, Denver, Colorado.

Attorneys for Respondent: Douglas K. Wilson, Public Defender, Sarah A. Kellogg, Deputy Public Defender, Denver, Colorado.

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 Prosecutors charged respondent Isidore Griego with attempted reckless manslaughter and attempted second degree assault arising out of two incidents in which Griego drove drunk but due to traffic conditions at the time of the incidents did not ultimately put any particular persons at risk. We now must decide whether the requirement in the attempted reckless manslaughter and attempted second degree assault statutes that a defendant place "another person" at risk of death or serious bodily injury necessitates that an actual, discernible person be placed at risk, or if "another person" can refer to the public at large.1 We conclude that the statutes at issue require a showing of a risk to an actual, discernible person and that a risk to the public at large is insufficient. Holding otherwise would leave the statutes without a clear limiting principle and would raise equal protection concerns. Accordingly, we hold that the court of appeals division below correctly determined that the evidence did not support Griego's convictions for attempted reckless manslaughter and attempted second degree assault. See People v. Griego, 2015 COA 31, ––– P.3d ––––. We therefore affirm the division's judgment.

I. Facts and Procedural History

¶2 The charges in this case arose from Griego's December 26, 2005 and October 7, 2006 arrests for driving under the influence of alcohol ("DUI").

A. December 26, 2005 Arrest

¶3 At 9:30 p.m. on December 26, 2005, while working in Arapahoe County, Officer Dan Hyde observed Griego driving southbound on South Platte Canyon Road with no lights on. Officer Hyde got behind Griego and activated his police lights.

¶4 As Officer Hyde followed, Griego turned his headlights on and off three or four times and swerved to the left, about halfway over the center line, before swerving back and traveling all the way across the shoulder line. Officer Hyde thought Griego would stop at that point, but he did not. Rather, he again began to drift to the left. Seeing a vehicle then approaching Griego in the northbound lane, Officer Hyde activated his siren to warn the oncoming driver, and that driver pulled over. As a result, the oncoming driver never drew closer than 100 to 150 feet from Griego's vehicle.2

¶5 Griego then drifted back to the right side of the road, crossed the southbound lane, and ultimately drove into a ditch next to the road. Once in the ditch, he continued to drive for about a block, hitting a street sign and pulling it out of the ground along the way. He then drove back onto the southbound lane and approached an intersection. Although the traffic light was red, Griego did not slow down or stop. Instead, he continued through the light and turned left. After driving for another block and a half, he turned right into an apartment complex parking lot, where he ultimately hit a curb and came to a stop.

¶6 Officer Hyde then got out of his car and approached Griego's vehicle. When he got there, he smelled a very strong odor of alcohol and noted that Griego's speech was so slurred that the officer could barely understand what Griego was saying. Officer Hyde arrested Griego and gave him a summons for DUI.

¶7 Notably, Officer Hyde was of the view that Griego's vehicle "was never an imminent danger to the oncoming northbound car" and that "Griego's weave into the center lane area did not jeopardize or threaten any oncoming traffic." As a result, the officer did not issue a summons for reckless driving.

B. October 7, 2006 Arrest

¶8 Ten months later, at 2:45 a.m. on October 7, 2006, Officer John Jones responded to a report that a person was asleep behind the wheel of a vehicle that was parked at an intersection in Arapahoe County. When Officer Jones approached the car, he found Griego asleep at the wheel with his foot on the brake, the engine running, and the car in drive. No other cars and no pedestrians were in the vicinity of Griego's vehicle at that time.

¶9 Officer Jones tried to get Griego's attention by pounding on the window and yelling at Griego to wake up. After five minutes of such pounding and yelling, Griego woke up and rolled down the car window. When he did, Officer Jones noted an odor of alcohol coming from Griego's breath, and the officer arrested Griego and gave him a summons for DUI.

C. Investigation by District Attorney's Office

¶10 While both of the foregoing cases were pending, someone in the District Attorney's office contacted Thomas Malone, a senior investigator in that office, and asked him to investigate the two incidents for additional charges "outside the realm of a DUI case." This request was apparently motivated by the fact that Griego had a large number of prior DUI arrests.

¶11 Investigator Malone conducted what he described as a "comprehensive" investigation into both of the pending cases against Griego. During this investigation, Investigator Malone met with Officer Hyde, and the two visited the scene of the December 26, 2005 incident, where Officer Hyde explained what he had observed that night. In the course of this discussion, Investigator Malone specifically asked Officer Hyde why he did not charge Griego with reckless driving. Officer Hyde responded that Griego's conduct did not pose an imminent threat to the other vehicle that had approached and did not jeopardize or threaten any other oncoming traffic.

¶12 Investigator Malone also reviewed the reports from Griego's October 7, 2006 arrest. He did not speak with Officer Jones about that incident, however, because he did not feel that an interview would shed any further light on what had occurred.

¶13 Thereafter, Investigator Malone prepared a lengthy written report for the District Attorney's office. In this report, he stated that he "personally did not believe it to be appropriate" to file any charges beyond the DUI offenses charged by the officers.

D. Charges and Trial

¶14 Notwithstanding the decisions made by the officers on scene and the conclusions reached by Investigator Malone concurring in the officers' judgments, the District Attorney decided to charge Griego with attempted reckless manslaughter and attempted second degree assault, both class five felonies, but not with DUI. Thus, in the complaint and information, the People alleged that Griego had (1) "recklessly attempted to cause the death of any and all members of the public in his vicinity" and (2) "recklessly attempted to cause serious bodily injury to any and all members of the public in his vicinity, by means of a deadly weapon, namely: a motor vehicle." (Emphases added).

¶15 Prior to trial, Griego moved to dismiss the foregoing charges. He contended that the People could not establish the requisite elements of the charged crimes (and particularly the requirement of a substantial step toward commission of the offense) because (1) the complaint and information did not properly specify any individual who was an alleged victim and (2) no statements in discovery suggested that Griego had used his vehicle as a weapon. The trial court denied Griego's motion.

¶16 The case proceeded to trial, and at trial, the People presented evidence pursuant to CRE 404(b) that between September 29, 1991 and September 30, 2001, Griego had been arrested and cited for DUI seven times. The court instructed the jurors that they were only to consider these prior acts for a limited purpose, namely, to "determine whether the defendant was aware of the risk created by the charged acts or conduct."

¶17 At both the end of the People's case and the close of all of the evidence, Griego moved for a judgment of acquittal. The court denied both motions, and the jury ultimately convicted Griego on all counts. Thereafter, the trial court sentenced Griego to four years in the Department of Corrections for attempted manslaughter and two years for attempted second degree assault, to be served concurrently.

E. Griego's Appeal

¶18 Griego appealed, arguing, as pertinent here, that the People had not shown that "another person" had actually been put at risk by Griego's behavior. Griego contended that absent such a showing, the evidence was legally insufficient and his convictions could not stand.

¶19 The People responded that for purposes of the attempt crimes at issue, they did not need to specify an individual who was put at risk. Rather, they needed to show only that Griego had the requisite intent to complete the crimes and that he took substantial steps toward harming or killing someone in the greater public.

¶20 In a split, published decision, a division of the court of appeals concluded that "another person" was not superfluous statutory language and that this element was not satisfied by an allegation that the victims were "any and all members of the public in [a defendant's vicinity]." Griego, ¶ 34, –––P.3d at ––––. Rather, to secure a conviction under the statutes at issue, the People were required to establish that Griego had placed "another person" (i.e., a "discernible person") at substantial risk of likely death or serious bodily injury. Id. at ¶ 42, ––– P.3d at ––––. Perceiving no such proof, the division reversed the judgment of conviction and remanded the case for entry of a judgment of acquittal on all counts. Id. at ¶¶ 44, 46, 48, ––– P.3d at ––––.

¶21 Judge Booras dissented. In her view, the People introduced sufficient evidence to establish that Griego had placed another person in danger of death or serious bodily injury. Id. at ¶ 49, ––– P.3d at –––– (Booras, J., dissenting). In support of this conclusion, Judge Booras relied on...

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