People v. Marston

• Decision Date: 06 August 2020
• Docket Number: Court of Appeals No. 18CA1879
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn Patrick MARSTON, Defendant-Appellant.

490 P.3d 844

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

v.Shawn Patrick MARSTON, Defendant-Appellant.

Court of Appeals No. 18CA1879

Colorado Court of Appeals, Division V.

Announced August 6, 2020

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1 Defendant, Shawn Patrick Marston, appeals the judgment of conviction entered on a jury verdict finding him guilty of driving while ability impaired (DWAI). One of the issues he raises is whether the district court was required to hold a Shreck hearing, see People v. Shreck , 22 P.3d 68 (Colo. 2001), before allowing a police officer to testify about the results of a horizontal gaze nystagmus (HGN) test the officer administered to him immediately before he was arrested. We hold that no such hearing was required; the results of such a test are generally admissible, if relevant, as evidence of impairment, so long as the person testifying about the administration and results of the test is competent to give such testimony. The officer in this case was, so the court didn't err by allowing the officer's testimony. We also reject Marston's other challenges to the judgment and therefore affirm.

I. Background

¶ 2 Shortly before noon one day, J.P. was driving behind a red truck when he saw the truck straddling lanes and speeding up and slowing down erratically. He also saw the driver nodding off at the wheel. J.P. called 911 and followed the truck to a 7-Eleven. Marston got out of the truck and went into the 7-Eleven, at which point J.P. approached a Jefferson County Sheriff's deputy — Deputy Aaron Fosler — who had just pulled into the parking lot. J.P. told Deputy Fosler what he had seen. Deputy Fosler followed Marston into the 7-Eleven.

¶ 3 Deputy Fosler asked Marston to step outside the convenience store and answer some questions. Marston obliged. As Deputy Fosler held the door open and Marston walked out, he saw that Marston was "staggering, grabbing something to hold onto." Outside, Deputy Fosler questioned Marston about his driving and whether he had been drinking. Marston told him that his driver's license was suspended, told the officer he had driven to the 7-Eleven but then said his girlfriend had driven him there, and told the officer he had downed several "mixed drinks" the night before at his girlfriend's house. Unprompted, Marston asked Deputy Fosler if there was any way to keep his truck from being towed if he was taken to jail. Throughout this conversation, Deputy Fosler noticed that Marston's eyes were red and watery, he smelled of alcohol, and his speech was "thick tongued."¹

¶ 4 Based on Marston's statements and Deputy Fosler's observations, Deputy Fosler called for another officer, Deputy Kevin Kehl, to administer roadside field sobriety tests. Kehl did so. One such test was the HGN test. As discussed more fully below, that test requires the subject to follow an object (for example, a pen) with his eyes to the left and right. The person administering the test must watch the subject's eyes to detect any involuntary "jerking" of his eyeballs.

¶ 5 At one point during the roadside tests, when Deputy Kehl was demonstrating a walk-and-turn maneuver, Marston said, "I couldn't do that sober." Deputy Kehl determined that Marston didn't perform as a sober person would on the HGN test and the other roadside tests and arrested him. Marston refused to take a chemical test.

¶ 6 After Marston's girlfriend picked up the truck from the 7-Eleven, she found bottles of vodka in the back of the truck. She testified at trial that, contrary to what Marston had told Deputy Fosler, she wasn't with Marston the night before the arrest and in fact hadn't seen him in several weeks.

¶ 7 The People charged Marston with driving under the influence (DUI) and driving under restraint. Marston went to trial on the DUI charge. The jury ultimately convicted him of the lesser included DWAI offense. The court then determined that Marston had at least three prior alcohol-related driving convictions and sentenced him for felony DWAI. See § 42-4-1301(1)(b), C.R.S. 2019.

II. Discussion

¶ 8 Marston contends that the district court erred by (1) denying his motion to suppress his statements to Deputy Fosler at the scene; (2) denying his request for a Shreck hearing on (a) the reliability of the HGN test and (b) Deputy Kehl's expertise; and (3) determining that he had three prior alcohol-related driving convictions by a preponderance of the evidence rather than having the jury determine those convictions as elements that must be proven beyond a reasonable doubt. We address and reject each contention in turn.

A. Marston's Statements to Police

¶ 9 First, Marston contends that his statements to Deputy Fosler at the scene should have been suppressed because they were involuntary.² We disagree.

1. Standard of Review

¶ 10 "A trial court's suppression ruling presents a mixed question of fact and law." People v. Ramadon , 2013 CO 68, ¶ 21, 314 P.3d 836. We won't overturn the trial court's factual findings if they are supported by competent evidence in the record; however, we review the legal effect of those facts de novo. Id. ; Effland v. People , 240 P.3d 868, 878 (Colo. 2010) ("[T]he ultimate determination of whether a statement is voluntary is a legal question and is reviewed de novo."). And we review any error under the constitutional harmless error standard; that is, we reverse unless the People show that the error was harmless beyond a reasonable doubt. Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116.

2. Applicable Law

¶ 11 "[A] defendant's statements must be voluntary to be admissible as evidence."

Ramadon , ¶ 18. In determining whether a defendant's statements were voluntary, we "must consider the totality of the circumstances ‘to determine whether the accused's will was actually overborne by coercive police conduct.’ " People v. Coke , 2020 CO 28, ¶ 18, 461 P.3d 508 (quoting Sanchez v. People , 2014 CO 56, ¶ 11, 329 P.3d 253 ). To do so, we engage in a two-step inquiry: we first look to whether the police conduct was coercive; if so, we then look to whether that conduct "played a significant role in inducing the statements." Ramadon , ¶ 20. The statements "must not be the product of any direct or implied promises, nor obtained by exerting an improper influence." People v. Medina , 25 P.3d 1216, 1222 (Colo. 2001).

¶ 12 To determine whether the police conduct was coercive, we may consider, among other things, the following factors:

(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

(3) whether the defendant was aware of the situation;

(4) whether the police read Miranda rights to the defendant;

(5) whether the defendant understood and waived Miranda rights;

(6) whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;

(7) whether the statement was made during the interrogation or volunteered later;

(8) whether the police threatened [the] defendant or promised anything directly or impliedly;

(9) the method or style of the interrogation;

(10) the defendant's mental and physical condition just prior to the interrogation;

(11) the length of the interrogation;

(12) the location of the interrogation; and

(13) the physical conditions of the location where the interrogation occurred.

Ramadon , ¶ 20 (quoting Medina , 25 P.3d at 1222-23 ).

3. Analysis

¶ 13 We agree with the district court's determination that Marston's will wasn't overborne by coercive police conduct and that his statements were therefore voluntary. The following facts, almost all of which are undisputed, lead us to this conclusion:

• Deputy Fosler asked Marston if he wouldn't mind stepping outside and answering some questions; he didn't order him to do so. Marston agreed.

• No officer made any threats or promises to Marston.

• The encounter occurred outside, in a public place.

• Marston seemed be aware of the situation. (He had been in this situation several times before.) For example, unprompted, he asked if there was any way he could prevent his truck from being towed if he was taken to jail.

• Marston appeared to understand Deputy Fosler's questions and gave responsive answers.

• Marston wasn't restrained in any way and hadn't yet been taken into custody.

• Deputy Fosler used a conversational tone.

• The deputies didn't use any subtle psychological pressure to get Marston to talk.

¶ 14 Marston asserts that his statements were coerced because more than one deputy was present, the two deputies stood close to him, the encounter lasted twenty to thirty minutes, he wasn't given a Miranda advisement, and he wasn't free to leave. But looking at the totality of the circumstances, as we must, see Coke , ¶ 18, we conclude that these facts don't add up to coercion.

¶ 15 People v. Zadran , 2013 CO 69M, 314 P.3d 830, presents an instructive comparison. In that case, the supreme court determined that the police officer's statements to the defendant that "I think it would be in your best interest to talk to me[,]" "I think you are going to be interested in some of the things that I already know[,]" "It is what it is. You messed up. You know you messed up[,]" and "You want to get ahead of this. You want to make things right. You want a positive outcome from this. I'm trying to do the [least] invasive thing that I can do here[,]" didn't show police coercion. And this even though the defendant was in custody and wasn't free to leave. Id. at ¶¶ 15-19. The court contrasted the facts before it with those in cases in which the police exploited a defendant's "particular set of vulnerabilities." Id. at ¶¶ 17-18.

¶ 16 In terms of showing coercion, the facts of this case don't even approach those in Zadran , in which the court found no coercion. Deputy Fosler...