United States v. Merritt

• Decision Date: 10 June 2020
• Docket Number: No. 18-1146,18-1146
• Citation: 961 F.3d 1105
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Timothy Amos MERRITT, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

961 F.3d 1105

UNITED STATES of America, Plaintiff - Appellee,

v.Timothy Amos MERRITT, Defendant - Appellant.

No. 18-1146

United States Court of Appeals, Tenth Circuit.

FILED June 10, 2020

Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

Marissa R. Miller, Assistant United States Attorney (Jason R. Dunn, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before HARTZ, MORITZ, and EID, Circuit Judges.

EID, Circuit Judge.

On August 3, 2016, while driving within the borders of the Ute Mountain Ute Reservation, Defendant-Appellant Timothy Merritt crashed into a vehicle containing a family of three. Merritt was intoxicated at the time of the accident and had been driving in the wrong lane. Cecil Vijil,¹ a passenger in the other vehicle, died by the time the ambulance arrived. Cecil's wife Sallie Vijil, also a passenger, was seriously injured. Their son Creighton, who was driving, suffered minor injuries.

The government charged Merritt with second-degree murder for the death of Cecil Vijil in violation of 18 U.S.C. §§ 1111(a), (b) and 1153, and assault resulting in serious bodily injury for the injuries sustained by Sallie Vijil, in violation of 18 U.S.C. §§ 113(a)(6) and 1153.² See ROA Vol. I at 12. At trial, the government introduced evidence of three other drunk-driving incidents involving Merritt: (1) a 2012 arrest for drunk and reckless driving; (2) a 2014 arrest for intoxication; and (3) a November 2016 drunk-driving arrest, which took place after the accident that killed Cecil Vijil. Aplt. Br. at 4. The jury convicted Merritt on both counts. Merritt appeals the murder conviction, arguing that the district court should not have allowed testimony about the facts and circumstances of the 2012 and 2014 incidents, and that no evidence concerning the 2016 arrest should have been admitted.

Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm the conviction. It was within the district court's discretion to admit the facts and circumstances of the 2012 and 2014 incidents, and any error in admitting the 2016 incident was harmless.

I. FACTUAL BACKGROUND

A. August 2016 Incident

On the evening of August 3, 2016, the Vijil family was driving down State Highway 41, a stretch of road in Southwest Colorado near the Utah border. Creighton Vijil was driving, and his parents Cecil and Sallie were passengers. See ROA Vol. VI at 69–71. Creighton noticed a pair of headlights approaching in the distance. Id. at 72. Initially, he was unconcerned, but he soon noticed that the oncoming vehicle was driving in the wrong direction—in his own lane. Id. Creighton tried to swerve into the other lane to avoid the oncoming vehicle, but the two vehicles collided. Id. at 72, 135.

Shortly after the crash, a passing police officer named Heather Tolth spotted the accident and called for backup. Id. at 44–46, 73. After checking on the Vijils, Tolth approached Merritt's truck. Id. at 48. She "immediately smelled intoxicating liquor" emanating from Merritt's truck. Id. Not only were his eyes bloodshot, but she observed that his speech was slurred. Id. She testified that Merritt "appeared to be calm" throughout their interaction. Id. at 49.

By the time backup arrived, Cecil Vijil was dead. Id. at 133–34. One of the newly arrived officers spoke with Merritt and also concluded Merritt was "intoxicated." Id. at 153. But Merritt denied he had been drinking and said there was no alcohol in his car. Id. at 137. The officer performed a field sobriety test, which Merritt failed. Id. at 144–46, 148–49. The officer also observed that Merritt was unable to walk in a straight line and appeared to have difficulty balancing. Id. at 152.

The police arrested Merritt for driving under the influence of alcohol. Id. at 153. When the officers searched Merritt's truck, they found two empty beer cans behind the driver's seat and a cooler filled with 15 full cans of Coors Light. Id. at 154. At trial, a forensic toxicology analyst testified that roughly three and a half hours after the crash, Merritt's blood alcohol level tested at about .19, well above the legal limit of .08. Id. at 387. This same expert reported Merritt's blood alcohol level would have been even higher—between .23 and .25—at the time of the crash. Id. at 389.

Captain Leander Morris interviewed Merritt the day after the crash. Id. at 246. Morris testified that Merritt eventually acknowledged he had consumed eight beers over the course of the afternoon. Id. at 251. According to Merritt, his level of intoxication at the time of the accident was only "a 5 on a scale of 1 to 10." Aple. Br. at 4. But Merritt admitted he knew it was wrong to drink and drive. Id.

B. Other Acts Testimony

Prior to trial, the government notified Merritt it intended to introduce evidence of other incidents in which Merritt had been driving while under the influence of alcohol under Fed. R. Evid. 404(b). Over Merritt's objections, the district court decided to allow testimony about the other incidents. The government introduced testimony regarding three other incidents through the arresting officers for each incident. Their testimony is summarized as follows.

1. 2012 DUI and Reckless Driving Arrest

Officer Grant Keams testified about Merritt's 2012 driving-under-the-influence conviction ("DUI"). ROA Vol. VI at 772. Keams was driving on a four-lane highway around noon when he saw Merritt driving southbound in the northbound lane of traffic. Id. at 774. Amidst a "high volume of traffic," Merritt's sedan forced vehicles to halt or even pull onto the shoulder in order to avoid Merritt's car. Id. at 776–77. Keams turned on his emergency lights and siren, but Merritt did not pull over. Id. at 777. Instead, Merritt vomited out the car window and threw an empty beer can out of his car. Id. at 777–78. Keams then saw Merritt cut across two lanes of traffic to pull into a gas station. Id. at 778–80. As Merritt was pulling into the gas station, another police car pulled in front of Merritt's car, blocking its path. Id. at 781–82.

Keams approached Merritt's vehicle and opened the door. Id. at 782. Keams observed fresh vomit on Merritt's beard and reported it was pretty clear that Merritt was in an intoxicated state. Id. Merritt's eyes were bloodshot and he slurred his speech. Id. at 783. Because Merritt was unable to maintain his balance, Keams could not safely administer a field sobriety test. Id. at 782–83.

Keams arrested Merritt and a subsequent search of Merritt's car revealed an open can of beer in the center console, two empty beer cans in the back seat, 45 unopened cans of beer, and a 750 ml bottle of vodka that was mostly empty. Id. at 784–86. Ultimately, Merritt pleaded guilty to driving under the influence and reckless driving. Id. at 787.

2. 2014 Intoxication Arrest

Brett Von Laner, then a security officer at the Ute Mountain Casino, testified about Merritt's 2014 intoxication conviction. Id. at 749. In March 2014, Laner was called to the travel center near the casino. Id. When he arrived, Laner saw Merritt's truck parked by a gas pump at the travel center. Id. at 750. Merritt had just paid for gas and was walking back to his car. Id. Laner observed that Merritt looked intoxicated, had poor balance, smelled of alcohol, and had bloodshot eyes. Id. Laner asked whether there was alcohol in the vehicle, and Merritt said no. Id. at 753. Laner called the police, and the responding officer similarly concluded that Merritt was drunk and thus arrested him. Id. at 754, 763. After the arrest, officers found an empty beer can in the center console and a six-pack of Bud Light in the car. Id. at 755. Laner testified that the Ute Mountain Ute Reservation is a dry reservation, so Merritt could not have bought alcohol at the travel center or casino. Id. at 753. Merritt eventually pleaded guilty to an intoxication charge based on this incident. Id. at 763–64.

3. November 2016 Arrest

Officer Rusty Smith and Lieutenant Gwendolyn Smith testified about Merritt's November 2016 arrest—while he was out on bond for his August 2016 arrest. Rusty Smith was driving home from work around 1:00 a.m. on November 9, 2016 when he observed Merritt driving at speeds between 50 and 70 miles per hour in a 65 mile per hour zone. Id. at 708–09. Merritt was also weaving and drifting over the center line of a two-lane highway. Id. at 709. Rusty Smith did not immediately arrest Merritt because he was out of his jurisdiction. Id. at 710. Instead, he called the local police for backup. Id. But when Rusty Smith saw Merritt come close to swerving over the center line and into the path of an 18-wheeler tractor trailer, he decided to pull the truck over. Id. at 710–11.

When Rusty Smith pulled Merritt over, he observed the car's windows were down even though it was a cold night. Id. at 711. Merritt denied he had been drinking, but Rusty Smith smelled alcohol and observed that Merritt's speech was slurred and slow. Id. at 712. When questioned about his erratic driving, Merritt insisted he "was driving straight the whole time." Id. Asked for identification, Merritt first handed Rusty Smith a bank card before eventually handing over his driver's license after prompting. Id. at 712–13. Rusty Smith inquired again whether Merritt had been drinking, and Merritt said, "I only had about three beers but I told you I only had two earlier" (even though he had previously denied having any alcohol). Id. at 713–14.

Lieutenant Gwendolyn Smith eventually arrived and took over the investigation. Id. at 714–15. Like Rusty Smith, Gwendolyn Smith reported smelling alcohol on Merritt and observed that his eyes were red and speech was slurred. Id. at 352. She tried to have Merritt stand on one leg and count to test his sobriety, but Merritt could not balance, and Gwendolyn Smith had to steady him. Id. at 354–55. Gwendolyn Smith was unable to administer this part of the...