Arapahoe County District Court No. 07CR1404 Honorable Carlos A. Samour, Jr., Judge
Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Sarah A. Kellogg, Deputy Public Defender, Denver, Colorado, for Defendant-Appellant
ROTHENBERG JUDGE [*]
¶ 1 Defendant, Isidore A. Griego, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted reckless manslaughter and attempted second degree assault. We reverse and remand with directions to enter judgment of acquittal on both charges.
¶ 2 On December 26, 2005, and October 7, 2006, defendant was observed operating a motor vehicle while intoxicated. On both of these occasions, he was issued a summons for driving while under the influence of alcohol (DUI), a misdemeanor. § 42-4-1301(1)(a), C.R.S. 2014.
¶ 3 The arresting officer in the 2005 incident was Patrol Officer Dan Hyde. He testified at trial that he saw defendant driving in Arapahoe County about 9:30 p.m. According to Officer Hyde, defendant's vehicle was travelling at a normal rate of speed but did not have the headlights on, so Officer Hyde drove directly behind defendant's vehicle and activated the lights on the police cruiser. Defendant did not pull over, and Officer Hyde described how defendant began to drive erratically until he turned into the parking lot of an apartment complex and stopped. Defendant had a strong odor of alcohol on his breath and was unsteady when he exited his vehicle.
¶ 4 The second incident occurred in the early morning of October 7, 2006. Patrol Officer John T. Jones responded to a report that a vehicle was stopped at a Littleton intersection, and that the driver of the vehicle was asleep at the wheel. No one else was in the vicinity of defendant's vehicle. Officer Jones testified that defendant's vehicle was stopped but was still running with defendant's foot on the brake, that it took him five minutes to awaken defendant, and that defendant had a strong odor of alcohol on his breath when he exited the vehicle.
¶ 5 While both DUI cases were still pending, Michael Knight, chief investigator in the 18th Judicial District Attorney's office, learned that defendant had previously been arrested for six alcohol-related driving offenses between 1992 and 2001. In February 2007, Knight contacted Thomas Malone, a senior investigator in the office. Knight asked Investigator Malone to investigate defendant's cases, to collect and evaluate information, and to determine whether additional charges should be filed against him.
¶ 6 Investigator Malone testified at trial that he conducted an extensive, independent, factual investigation of both cases; that he examined all of the available court, police, and motor vehicle records; and that he personally met with Patrol Officers Hyde and Jones.
¶ 7 Investigator Malone met with Officer Hyde on March 1, 2007, and they drove together to the scene where Officer Hyde had first observed defendant. According to Investigator Malone, "[W]e drove the same route that Officer Hyde drove the night he contacted the defendant." Investigator Malone said he took notes of their conversation, and "specifically asked [Officer Hyde] why he did not summons [defendant] for reckless driving." Investigator Malone explained that he asked that question because:
there was some weaving that was alleged . . . in general proximity to other traffic, and I really wanted to find out from [Officer Hyde] how close this action was, these two vehicles passing each other, how close they were for the purposes of determining the danger involved, the potential danger involved in these two vehicles . . . or this vehicle going down the road and other traffic going in the other direction.
¶ 8 Officer Hyde told Investigator Malone that he did not suspect a DUI immediately even though "[t]he [defendant's] headlights weren't on . . . [because] there were no other driving actions [at that time] that [were] indicative of [reckless driving]." But Officer Hyde stated that, after he turned on his overhead lights, "the defendant's vehicle weaved into the other lane of traffic." Officer Hyde also described defendant's erratic driving behavior that night, including driving on the bike lane section of the road, striking a road sign, and running a red light. Nevertheless, Officer Hyde said he did not charge reckless driving "because the weaving . . . was not an imminent sort of strike to [an oncoming] vehicle." Officer Hyde estimated the distance between defendant's vehicle and the oncoming vehicle, and stated that the oncoming vehicle had pulled over because that vehicle saw Officer Hyde's emergency lights on and was being careful to get off the road. The record contains conflicting evidence of the distance between the two vehicles, with Officer Hyde alternatively reporting a distance of 100 to 150 feet and 100 to 150 yards.
¶ 9 Officer Hyde's statement to Investigator Malone was consistent with his later testimony at trial; namely, that defendant's weaving across the center line did not jeopardize or threaten any oncoming traffic, and that "the reason he didn't file reckless driving was because the facts didn't warrant it."
¶ 10 Investigator Malone also investigated the 2006 incident in which Officer Jones found defendant sleeping in his vehicle in a Littleton intersection. Investigator Malone summed up that incident as follows: "[F]rom just a review of the facts that it was a single vehicle. There were no other driving actions. There were no other vehicles. It was not an accident."
¶ 11 After conducting a "comprehensive investigation, " Investigator Malone prepared a lengthy written report for the District Attorney's office stating that he concurred with both officers' assessments of the incidents, and that he "personally did not believe it to be appropriate" to file additional charges in this case.
¶ 12 The District Attorney's office nevertheless charged defendant with attempted reckless manslaughter and attempted second degree assault, two felonies. They also charged him with a violent crime based upon his alleged use of a deadly weapon, his automobile.
¶ 13 The complaint charging defendant of attempted reckless manslaughter alleged that defendant had "recklessly attempted to cause the death of any and all members of the public in his vicinity." The complaint charging him with attempted second degree assault alleged that he had "recklessly attempted to cause serious bodily injury to any and all members of the public in his vicinity."
¶ 14 Defendant filed a pretrial motion to dismiss, contending that (1) both of the charged offenses contemplated the possibility of death or serious bodily injury to another person and (2) the prosecution had failed to allege that he took a substantial step towards causing the death of another because it had not identified another person endangered by his behavior. The prosecution maintained that it was not required to name a specific victim or victims. The trial court denied defendant's motion, and later denied his motion for a judgment of acquittal at the close of the evidence.
¶ 15 At the jury trial, the prosecution presented evidence relating to the two charged felonies, and over defendant's objections, the trial court permitted the prosecution to present evidence under CRE 404(b) that defendant had previously been arrested for DUI six times between June 20, 1992, and September 30, 2001. The court instructed the jurors that they were only to consider these arrests for a limited purpose, which was to show that "defendant was aware of the risk created by the charged acts or conduct."
¶ 16 The prosecution's theory of the case did not vary during the trial. It was that defendant was guilty of two felonies because he got into his car and drove while intoxicated. The verdict did not depend on the manner in which he drove, but only the knowledge he had gleaned from his six previous arrests for driving under the influence of alcohol.
¶ 17 During her brief opening statement, the prosecutor told the jury the evidence would show that defendant "chose to place the lives of everyone around him at risk." She emphasized the "six other occasions" he had been caught driving while extremely intoxicated, which showed "that he knew the risks that he was taking . . . because he's done it six times before." She also stated: "We heard about conscious disregard and magnitude of harm and likelihood of harm, but make no mistake, this case is about choice. [Defendant] made his choice . . . ."
¶ 18 At the close of the case, the prosecutor told the jury she had to "prove that [defendant] took a substantial step towards the commission of the risk-producing act, " and "the risk-producing act [was defendant] driving in his intoxicated condition." However, she added:
I don't have to prove to you that [defendant] took a substantial step toward killing someone, that he took a substantial step towards causing serious bodily injury. I have to prove that he took a substantial step ...