People v. Marston

• Decision Date: 11 February 2021
• 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.

491 P.3d 412

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 February 11, 2021

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 previously issued an opinion holding 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. People v. Marston , 2020 COA 121, 490 P.3d 844. We also rejected Marston's other challenges to the judgment, including his contention that the district court erred by finding by a preponderance of the evidence that he had at least three prior alcohol-related driving convictions rather than submitting that issue to the jury for it to decide beyond a reasonable doubt.

¶ 2 The supreme court vacated our opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. Marston v. People , (Colo. No. 20SC695, Jan. 11, 2021) 2021 WL 96675 (unpublished order). In Linnebur , the supreme court held that the requirement of three or more prior qualifying offenses is an element of felony DWAI that must be found by a jury beyond a reasonable doubt. Linnebur , ¶¶ 2, 31. Following Linnebur , we reverse Marston's conviction for felony DWAI and remand for further proceedings consistent with this opinion. We once again address Marston's other contentions, however, because they bear on whether a conviction for misdemeanor DWAI can stand and would arise in the event of any retrial for felony DWAI.

I. Background

¶ 3 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.

¶ 4 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

¶ 5 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.

¶ 6 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.

¶ 7 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.

¶ 8 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. 2020.

II. Discussion

¶ 9 Marston contends that the district court erred by (1) 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; (2) denying his motion to suppress his statements to Deputy Fosler at the scene; and (3) denying his request for a Shreck hearing on (a) the reliability of the HGN test and (b) Deputy Kehl's expertise. We address each contention in turn.

A. Prior Convictions

¶ 10 Marston contends that the district court erred by finding that he had at least three prior alcohol-related driving convictions by a preponderance of the evidence rather than submitting the issue to the jury for it to decide beyond a reasonable doubt. He argues that the prior convictions are elements of the crime. As noted, Linnebur so holds. And it requires that we reverse Marston's DWAI conviction. On remand, the People may elect to retry Marston on the felony charge, and if Marston raises a double jeopardy objection the district court should address it. Linnebur , ¶ 32. If the People choose not to retry Marston on the felony charge, the district court should, given our rejection below of Marston's other contentions of error, enter a conviction for misdemeanor DWAI. Id.

B. Marston's Statements to Police

¶ 11 Marston next contends that his statements to Deputy Fosler at the scene should have been suppressed because they were involuntary.² If Marston is correct, any conviction for DWAI would be thrown into doubt. And the issue may arise on remand. Therefore, we address it.

1. Standard of Review

¶ 12 "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

¶ 13 "[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).

¶ 14 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

¶ 15 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

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