People v. Zubiate

• Decision Date: 09 May 2013
• Docket Number: Court of Appeals No. 11CA1939
• Citation: 411 P.3d 757
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Vanessa Ann ZUBIATE, Defendant–Appellant.
• Court: Colorado Court of Appeals

411 P.3d 757

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

v.Vanessa Ann ZUBIATE, Defendant–Appellant.

Court of Appeals No. 11CA1939

Colorado Court of Appeals, Div. I.

Announced May 9, 2013

Rehearing Denied May 30, 2013

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Andrea Gammell, Deputy State Public Defender, Natalie Schnall, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE HAWTHORNE

¶ 1 Defendant, Vanessa Ann Zubiate, appeals her convictions entered following a jury trial for aggravated driving after revocation prohibited (aggravated DARP) and driving while ability impaired (DWAI). She also appeals her driving under restraint (DUR) conviction entered following her guilty plea to that offense, and the sentence imposed. We affirm.

I. Background

¶ 2 Shortly after midnight on October 2, 2010, Officer Tom Rayside observed a car make a wide right turn in a residential area and began following it. The car made another right turn without signaling until after the turn had been completed, and the driver pulled over and stopped. No one exited the car for ten to fifteen seconds, and Officer Rayside approached it.

¶ 3 Defendant, the driver, was with two passengers. Officer Rayside smelled alcohol and marijuana in the vehicle. He asked defendant if she had been drinking, and she responded that she had a few drinks and had smoked marijuana earlier. She agreed to perform several roadside sobriety tests, which Officer Rayside determined were performed unsatisfactorily. He arrested her for suspicion of driving under the influence of alcohol or drugs, advised her of Colorado's express consent statute¹ , and informed her that she could refuse a chemical test or be taken to a local hospital to have blood drawn for a chemical test. According to Officer Rayside's police report, defendant "stated that she did not like needles and wanted to refuse a chemical test."² Defendant was charged with aggravated DARP, driving under the influence (DUI), DUR, failing to provide proof of insurance, and failing to signal a turn.

¶ 4 Before her first trial, defendant pled guilty to DUR and stipulated to the aggravated DARP elements establishing her habitual offender status, her knowledge of that status, and her revocation.

¶ 5 During the first trial, Officer Rayside testified that defendant told him that she was afraid of needles and refused to take a chemical test. Defendant's theory of defense was that she was afraid of needles and had refused the chemical test for that reason, not because she was intoxicated. To support this theory, her friend, H.W., testified that defendant had refused pain medication during childbirth and when she broke her arm because she was afraid of needles.

¶ 6 The first jury found defendant guilty of failing to provide proof of insurance and failing to signal. The trial court declared a mistrial on the DARP and DUI charges because the jury was unable to reach a verdict.

¶ 7 Defendant was retried on the DARP and DUI charges. During the second trial, defendant again maintained that she had refused the chemical test because she was afraid of needles and not because she was intoxicated. However, during defense counsel's cross-examination of Officer Rayside, the prosecution moved to preclude the defense from eliciting testimony about defendant's statement concerning her fear of needles on the basis that it was inadmissible hearsay. The trial court agreed, sustained the prosecution's objection, and precluded defense counsel from questioning Officer Rayside about whether defendant had stated that she was afraid of needles. Defendant was convicted of aggravated DARP and DWAI, a lesser included offense of DUI.

¶ 8 This appeal followed.

II. Excluding Defendant's Out–of–Court Statement

¶ 9 Defendant contends that the trial court erred in excluding an out-of-court statement concerning her fear of needles, and, consequently, deprived her of her constitutional right to present evidence in her own defense. We disagree.

A. Law and Review Standard

¶ 10 Few rights are more fundamental than the accused's right to present evidence that might influence the jury's determination of guilt. People v. Richards, 795 P.2d 1343, 1345 (Colo.App.1989). However, the right to present a defense is not absolute; it requires only that the accused be permitted to introduce all relevant and admissible evidence. People v. Harris, 43 P.3d 221, 227 (Colo.2002) ; 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.").

¶ 11 We review a trial court's evidentiary ruling for an abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). A trial court abuses its discretion when its ruling is (1) manifestly arbitrary, unreasonable, or unfair or (2) based on an erroneous understanding or application of the law. People v. Casias, 2012 COA 117, ¶17, 312 P.3d 208.

B. Hearsay

¶ 12 Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c) ; see People v. Huckleberry, 768 P.2d 1235, 1241 (Colo.1989). Hearsay is inadmissible unless it falls within an exception to the rule against hearsay. CRE 802. "The rule against hearsay exists because ‘[h]earsay statements are presumptively unreliable since the declarant is not present to explain the statement in context.’ " People v. Newton, 966 P.2d 563, 572 (Colo.1998) (quoting Blecha v. People, 962 P.2d 931, 937 (Colo.1998) ).

¶ 13 Defendant argues that the court erred in excluding her statement to Officer Rayside concerning her fear of needles because it was (1) offered for a nonhearsay purpose, (2) a statement against interest, and (3) a statement concerning her state of mind. We address these arguments in turn.

1. Nonhearsay Purpose

¶ 14 Defendant argues that her statement was admissible for the nonhearsay purpose of providing context for her actions. We are not persuaded.

¶ 15 A relevant out-of-court statement not offered for its truth is admissible as nonhearsay evidence. People v. Scearce, 87 P.3d 228, 233 (Colo.App.2003) ; see People v. Welsh, 176 P.3d 781, 790 (Colo.App.2007) ( "If an out-of-court statement is not offered for its truth, it is admissible as nonhearsay evidence as long as it is relevant.").

¶ 16 Here, the statement was only relevant if it was offered for the truth of the matter asserted, namely, that defendant feared needles. Accordingly, it was hearsay. See CRE 801(c). Because the statement is hearsay, an exception must apply for it to be admissible. See People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990) (an out-of-court statement offered to prove the truth of the matter asserted generally is not admissible unless it falls within an exception to the hearsay rule).

2. Statement Against Interest

¶ 17 Defendant argues that her statement was admissible as a statement against interest. We disagree.

¶ 18 CRE 804(3) defines a statement against interest as a statement that

(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

¶ 19 Relying on People v. Newton, defendant maintains that her statement concerning needles was admissible as a collaterally neutral statement related to a statement against interest. 966 P.2d at 578 (severing collaterally neutral statements from precise self-inculpatory remarks deprives the jury of important context surrounding that self-inculpatory remark). We are not persuaded.

¶ 20 Here, defendant's refusal to submit to the chemical test exposed her to criminal liability. See § 42–4–1301(6)(d), C.R.S.2012 ("[i]f a person refuses to take or to complete, or to cooperate with the completing of, any test or tests as provided in section 42–4–1301.1 and such person subsequently stands trial for DUI or DWAI, the refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial"). However, her statement that she feared needles was so self-serving that it was inherently unreliable because it suggested that she had refused the chemical test because of her fear of needles and not because the test would have confirmed that she was intoxicated. See Newton, 966 P.2d at 566 (admitting a statement against interest is subject to two limitations: (1) a trial court should exclude any remarks that are so self-serving as to be unreliable; and (2) if the trial court determines that the statement is unreliable because the declarant had a significant motivation to curry favorable treatment, the entire narrative is inadmissible). Thus, defendant's statement about fearing needles was so self-serving as to be unreliable, not collaterally neutral. Therefore, it was inadmissible. Id. (under CRE 804(b)(3), a trial court should admit the precise statement against penal interest contained in a declarant's narrative and related, collaterally neutral statements); see also People v. Atkins, 844 P.2d 1196, 1203 (Colo.App.1992) (statements allegedly demonstrating that the defendant was "sorry" that he had shot the victim and that he had not meant for the victim to die were not admissible as statements against interest because their attempted use was to mitigate the first degree murder charge), abrogated on...