19CA0547 Peo v Marquez 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0547
Jefferson County District Court No. 16CR3203
Honorable Philip J. McNulty, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Benjamin R. Marquez,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE BERGER
Yun and Vogt*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
1
¶ 1 A jury convicted defendant, Benjamin R. Marquez, of
misdemeanor driving under the influence (DUI) and careless
driving.
1
Marquez appeals those convictions, as well as his
conviction for felony DUI. While we agree that the felony DUI
conviction must be reversed, we do not reach Marquez’s equal
protection challenge to the felony DUI provision and reject his
remaining arguments. We therefore affirm the misdemeanor DUI
and careless driving convictions, reverse the felony DUI conviction,
and remand for further proceedings.
I. Relevant Facts and Procedural History
¶ 2 Deputy Dylan Mahonee observed Marquez driving erratically
and attempted to make a traffic stop. Although Marquez eventually
stopped, he did not immediately pull over, nearly hitting a fire
hydrant and sign in the process. During the traffic stop, Deputy
Mahonee observed an empty beer can on the passenger floorboard.
¶ 3 Before Deputy Mahonee could read him the Express Consent
advisement, Marquez demanded a breath test. After the deputy
1
The trial court dismissed a charge for illegal possession or
consumption of alcohol in a motor vehicle, and Marquez pleaded
guilty to driving after revocation. Because Marquez does not
challenge that conviction on appeal, we do not disturb it.
2
finished reading the advisement, Marquez then demanded a blood
test. To perform the blood test, Deputy Mahonee took Marquez to
jail, where Marquez refused a blood test and demanded a breath
test. Because of these multiple conflicting requests, he did not give
Marquez either test.
¶ 4 Marquez’s son testified at trial. He claimed that the empty
beer can was his and that he’d been drinking in the vehicle earlier
that night.
¶ 5 A jury convicted Marquez of misdemeanor DUI and careless
driving. The court held a separate hearing and found that Marquez
had three prior intoxicated driving-related convictions. The court
therefore convicted him of felony DUI and sentenced him
accordingly.
II. Analysis
A. Felony DUI
¶ 6 The parties do not dispute, and we agree, that because the
trial court (instead of the jury) found that Marquez had three prior
convictions, the felony DUI conviction cannot stand. Linnebur v.
People, 2020 CO 79M, ¶ 2.
3
¶ 7 The parties dispute, however, whether the proper remedy is to
reverse or vacate the felony DUI conviction. We reverse. The error
did not affect Marquez’s misdemeanor DUI or careless driving
convictions, so the trial court must resentence him on remand. “If,
in lieu of resentencing, the prosecution seeks retrial of the felony
DUI charge and [Marquez] raises a double jeopardy defense, the
trial court must rule on that defense.”
2
Id. at ¶ 32.
2
The supreme court’s recent opinion in People v. Viburg, 2021 CO
81M, ¶ 2 (Viburg II), does not alter our disposition or remand order.
Viburg II was an original proceeding under C.A.R. 21 following this
court’s reversal of Viburg’s felony DWAI conviction, People v. Viburg,
2020 COA 8M, ¶ 1 (Viburg I). This court declined to address
Viburg’s double jeopardy claim because we did not know if the
prosecutor would, on remand, seek to retry Viburg on the felony
charge and because, fundamentally, a double jeopardy bar is a
defense to a criminal prosecution. After the supreme court denied
certiorari in Viburg I, the prosecutor sought to retry Viburg on the
felony charge, and the trial court ruled that a retrial was proper.
Viburg II, ¶¶ 6-7. Viburg then filed an original proceeding in the
supreme court to challenge the trial court’s ruling, and the supreme
court issued a rule to show cause. Id. at ¶ 8. In its opinion on the
merits of the double jeopardy ruling, the supreme court held that
principles of double jeopardy (as well as principles of due process
and Colorado’s mandatory joinder statute) did not bar a jury trial of
the felony DWAI charge. Id. at ¶¶ 23, 27, 28. Obviously, after this
case is returned to the district court, if the prosecutor seeks to retry
Marquez for felony DUI, the supreme court’s decision in Viburg II
will be dispositive on the double jeopardy question. But that does
not mean that we should on direct appeal address a double
jeopardy challenge that may be moot if the prosecutor chooses not
to retry Marquez for felony DUI.
4
¶ 8 Because we reverse the felony DUI conviction, we do not
decide Marquez’s unpreserved argument that the felony DUI
provision violates equal protection. But see, e.g., People v. Tun,
2021 COA 34, ¶ 18 (rejecting a similar equal protection challenge to
the felony DUI provision).
B. Marquez’s Remaining Claims of Error
¶ 9 Because Marquez’s remaining claims of error may affect his
misdemeanor DUI and careless driving convictions, we address
those arguments.
1. Judicial Questioning
¶ 10 Marquez argues that the trial court reversibly erred when it
allegedly stepped into a prosecutorial role by asking a witness one
question.
¶ 11 In response to counsels’ questioning, Marquez’s son testified
that the empty beer can was his. The jury then also asked if the
empty beer can was his and the court posed the question to him.
¶ 12 After he again said yes, the court said, “Can you describe it for
the jury.” The son identified three beer brands, none of which
matched the empty can. Defense counsel then asked whether the
beer can could have been a fourth brand (it was), to which the son
5
said yes. In closing argument, the prosecutor emphasized the son’s
initial answer regarding the can’s brand.
¶ 13 It is unclear whether the parties agree on the applicable
standard of review. We do not need to decide that question because
there was no error. But see People v. Hall, 2021 CO 71M, ¶¶ 16-17
(applying abuse of discretion review to claims of judicial misconduct
in a bench trial). Marquez did not preserve this issue, so we reverse
¶ 14 Trial courts may ask witnesses questions. CRE 614(b). But
courts may not act as an advocate: the test is “whether the trial
judge’s conduct so departed from the required impartiality as to
deny the defendant a fair trial.” People v. Adler, 629 P.2d 569, 573
(Colo. 1981). “A trial court has the prerogative and, sometimes, the
duty to question witnesses called by a party. Such questions are
not improper where the purpose is to develop more fully the truth
and to clarify testimony already given.” People v. Ray, 640 P.2d
262, 264 (Colo. App. 1981) (citations omitted).
¶ 15 The court’s question did not so depart from the required
impartiality as to deny Marquez a fair trial. The court asked only
one question that more fully developed a topic already addressed by
6
and neutrally phrased. Although the answer may have been
damaging to Marquez, that does not affect the propriety of the
court’s question.
¶ 16 To the extent Marquez separately challenges the prosecutor’s
references in closing to the answer, we reject that argument.
Prosecutors may comment on the evidence, and again, although the
answer may have been damaging, that does not mean that the
court’s question was improper.
2. Prosecutorial Misconduct
¶ 17 Marquez also contends that the prosecutor engaged in
prosecutorial misconduct.
a. Standard of Review, Preservation, and Applicable Law
¶ 18 When reviewing prosecutorial misconduct claims, we first
“determine whether the prosecutor’s questionable conduct was
improper based on the totality of the circumstances,” before
determining “whether such actions warrant reversal according to
the proper standard of review.” Wend v. People, 235 P.3d 1089,
1096 (Colo. 2010).
7
¶ 19 Marquez did not preserve any claims of prosecutorial
misconduct. Therefore, we review only for plain error, and reverse
only if the conduct was flagrantly, glaringly, or tremendously
improper. Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.
2005).
¶ 20 Prosecutors commit misconduct when they misstate the
evidence, lower the burden of proof, or make assertions based on
personal knowledge. See People v. Nardine, 2016 COA 85, ¶ 35;
at 1049. To determine the propriety of a statement, we consider the
language used, the statement’s context, and the evidence
supporting the conviction. Domingo-Gomez, 125 P.3d at 1050.
b. Misstating the Evidence
¶ 21 Marquez first claims that the prosecutor misstated the
evidence when she stated (during opening argument and while
questioning Deputy Mahonee) that Marquez actually hit a fire
hydrant and sign even though the undisputed evidence was that he
nearly hit them.
8
¶ 22 The Attorney General has not cited any evidence that would
support the prosecutor’s statements. We therefore agree that the
prosecutor misstated the evidence.
c. Analogies
¶ 23 Marquez’s next claim of prosecutorial misconduct involves two
analogies that the prosecutor used during voir dire to describe
circumstantial evidence. Marquez also argues that the prosecutor
aggravated the impact of the allegedly improper analogies when she
referenced Occam’s Razor during closing argument and said, “The
simplest explanation is usually the right one.”
¶ 24 During voir dire, the prosecutor said:
So there are two types of evidence. There’s
direct and circumstantial. Circumstantial --
the way I generally describe that is if I tell you
I have something behind my back. It’s red.
It’s round. It’s a fruit. It has seeds. It grows
on trees. One a day keeps the doctor away.
It’s the main ingredient in America’s favorite
pie, and we give these to our teachers. Do you
know what I have behind my back, not having
seen it?
¶ 25 As some prospective jurors pushed back on whether the item
was definitively an apple, the prosecutor said she was using the
analogy to ask about “a bar to being able to listen.” She went on:
9
[During trial,] I’m going to ask you to look at
the law. I’m going to ask you to listen to the
testimony and then draw some conclusions
about what happened.
An example, I guess, in regular life would be if
you were babysitting, and there were red soda
. . . and you told the person you’re babysitting,
“Don’t drink that,” and they said, “Okay.”
And then you went upstairs and came back
down, and they had a red ring on their lips,
and the red pop was gone. Could you draw a
conclusion from that about what happened?
[Prospective Juror]: Yes.
[Prosecutor]: Okay. So that’s similar to what
I’m going to be asking you to do today. I’m
going to be asking you to make observations,
look at the circumstances surrounding the
string of observations, and draw some
conclusions.
¶ 26 These analogies were not improper. The prosecutor described
the difference between direct and circumstantial evidence.
Marquez, however, argues that when the prosecutor pushed back
on some of the prospective jurors’ responses to the analogies, she
lowered the burden of proof.
¶ 27 We disagree. Rather, the prosecutor discussed the concept of
drawing reasonable inferences from circumstantial evidence, which
was not close to constituting an improper analogy. Cf., e.g., Van
10
Meter, ¶ 31 (finding prosecutorial misconduct by repeatedly
analogizing to a puzzle).
¶ 28 Nor was the reference to Occam’s Razor improper when read in
context. The prosecutor immediately followed up by telling the
jurors to ask themselves what evidence was and was not before
them before saying that “reasonable doubt is not vague or
speculative. And that’s exactly what we were given by the
defendant’s witnesses.” In context, the prosecutor argued only that
the jury should make reasonable inferences based on the evidence.
That was entirely proper.
d. Personal Knowledge
¶ 29 Marquez’s last claim of prosecutorial misconduct is that the
prosecutor cited evidence outside the record when she said that she
had previously been pulled over and that she had not thought it
was a good idea to get out of the car when an officer was next to it.
¶ 30 We agree that these statements were improper. They were
based on the prosecutor’s personal experience and were not
supported by any evidence admitted at trial.
11
e. Reversal
¶ 31 Although we agree that the prosecutor made improper
statements, we conclude that the statements do not individually or
cumulatively warrant reversal.
3
¶ 32 The prosecutor’s misstatements regarding hitting the fire
hydrant and sign were corrected when Deputy Mahonee testified
that Marquez did not actually hit a fire hydrant or sign. Deputy
Mahonee’s testimony therefore corrected the misstatements, and in
any event, the statements did not so undermine the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
conviction. Domingo-Gomez, 125 P.3d at 1053.
¶ 33 The prosecutor’s statements regarding her personal experience
were, at best, fleeting. Moreover, while the statements referenced
facts not in evidence, prosecutors are entitled to argue that jurors
should use their own common sense and life experiences when
3
Marquez argues that the alleged prosecutorial misconduct
individually and cumulatively warrants reversal, in addition to his
claim of cumulative error under Howard-Walker v. People, 2019 CO
69. We assume, without deciding, that such a claim of cumulative
prosecutorial misconduct is cognizable apart from Howard-Walker.
12
deliberating. The statements were therefore not flagrantly,
glaringly, or tremendously improper. Id.
¶ 34 Even if we consider the cumulative impact of the statements,
Marquez still received a fair trial. The misstatements therefore do
not warrant reversal.
3. Jury Instructions
¶ 35 Marquez also argues that a jury instruction regarding refusal
to submit to a chemical test unduly emphasized that evidence and
should have been supplemented with additional language.
¶ 36 Based on Marquez’s ultimate refusal of the blood test that he
demanded, the prosecution requested, and the court gave, the
following instruction:
You are instructed that any person who drives
any motor vehicle in the State of Colorado may
be required to submit to a chemical test for the
purpose of determining the alcoholic content of
his or her blood. If a person refuses to submit
to such chemical test, then the jury may
consider such refusal along with all other
competent evidence in determining the
defendant’s guilt or innocence.
If you find that the defendant refused to take a
chemical test of the defendant’s blood or
breath, you may consider this refusal along
with other evidence in determining whether the
defendant is guilty of the offense of Driving
13
under the Influence or Driving While Ability
Impaired.
¶ 37 Defense counsel proffered additional instructions, which,
among other things, would have allowed the jury to infer innocence
if the jury found that Marquez requested a breath test, but the
officers refused to give him one.
¶ 38 We review de novo whether the jury instructions correctly
informed the jury of the applicable law. People v. Roberts-Bicking,
particular instruction for abuse of discretion, which occurs if the
(quoting People v. Trujillo, 2018 COA 12, ¶ 11).
¶ 39 We need not decide whether Marquez preserved this issue
because we perceive no error and reject Marquez’s arguments as
foreclosed by the Colorado Supreme Court’s holding in Cox v.
People, 735 P.2d 153, 159 (Colo. 1987).
¶ 40 First, Marquez argues that Cox’s language regarding this issue
was dicta. We disagree. Evidence that someone refused to take (or
complete or cooperate with completing) a chemical test is
admissible in a DUI trial. § 42-4-1301(6)(d), C.R.S. 2021. The Cox
14
court stated that it had granted certiorari on the propriety of
instructing the jury that evidence of refusal could be used to
determine guilt. 735 P.2d at 154. The court held that the
instruction was proper. Id. at 159. Irrespective of the brevity of the
court’s analysis, it is a holding of the supreme court and we are
2004) (“[W]e are bound by the decisions of the Colorado Supreme
Court.”).
¶ 41 Second, to the extent that Marquez makes an argument
outside of Cox’s holding, this instruction did not unduly emphasize
evidence of his failure to take a test. The instruction that the
supreme court expressly approved in Cox stated, “[i]f a person
refuses to submit to such chemical test, then the jury may consider
such refusal along with all other competent evidence in determining
the Defendant’s guilt or innocence.” 735 P.2d at 155.
¶ 42 The instruction here told the jurors that if they found Marquez
refused a test, “you may consider this refusal along with other
evidence in determining” his guilt. (Emphasis added.) The court’s
instruction, though lengthier, was an accurate articulation of the
15
law from Cox and informed the jury that it could consider the
refusal if it found that Marquez refused the test.
4
¶ 43 Third, we reject Marquez’s argument that the court should
have given defense counsel’s additional instructions. As noted
above, the instruction accurately stated the law from Cox. The
court’s denial of Marquez’s additional instruction that the jury
could infer innocence from his requests for a test was not an abuse
of discretion under these circumstances.
¶ 44 The trial court’s instruction and its refusal to give any
additional instruction were appropriate under Cox.
4. Cumulative Error
¶ 45 We have already concluded that the two instances of
prosecutorial misconduct do not cumulatively warrant reversal. We
have also rejected the other claims of error. Therefore, Marquez’s
claim of cumulative error fails. Howard-Walker v. People, 2019 CO
69.
4
Marquez’s argument that the instruction is not in the Model Jury
Criminal Instructions is inconsequential. The court’s instruction
was consistent with Cox v. People, 735 P.2d 153, 159 (Colo. 1987),
which, unlike the model instructions, is binding authority.
16
III. Disposition
¶ 46 The felony DUI conviction is reversed, and the case is
remanded for further proceedings. The misdemeanor DUI and
careless driving convictions are affirmed. On remand, if the
prosecution elects not to retry Marquez for felony DUI, then the trial
court must resentence him for the misdemeanor DUI conviction. If
the prosecution elects to retry Marquez for felony DUI, and if
Marquez interposes a double jeopardy bar, then the court must
decide that question before retrial.
JUDGE YUN and JUDGE VOGT concur.
