v. Kessler

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 3, 2018
2018COA60
No. 14CA1390, People v. Kessler — Constitutional Law —
Searches and Seizures — Warrantless Search — Search Incident
to Arrest — Motor Vehicles
A division of the court of appeals considers whether the trial
court should have suppressed evidence of cocaine recovered from
defendant’s car after he was arrested for driving under the influence
because the police lacked sufficient grounds to search the car once
they seized a half-empty bottle of schnapps.
The majority concludes that officers may search the passenger
compartment of a vehicle where the circumstances give rise to a
reasonable, articulable suspicion that the vehicle might contain
evidence of the crime for which they had probable cause to arrest.
The majority further concludes that the police officers’ reasonable
suspicion that defendant’s car contained evidence of alcohol did not
evaporate once the officers found some alcohol in the car. Thus, it
affirms the trial court’s denial of the motion to suppress.
The partial dissent disagrees and concludes that the police
lacked the requisite reasonable suspicion to further search the car
for alcohol once they recovered a half-empty bottle of schnapps.
COLORADO COURT OF APPEALS 2018COA60
Court of Appeals No. 14CA1390
Grand County District Court No. 13CR58
Honorable Mary C. Hoak, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel Steven Kessler,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE MÁRQUEZ*
Navarro, J., concurs
Dailey, J., concurs in part and dissents in part
Announced May 3, 2018
Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jessica A. Pitts, 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. 2017.
¶1 Defendant, Daniel Steven Kessler, appeals the judgment of
conviction entered on jury verdicts finding him guilty of possession
of a controlled substance (cocaine), driving under the influence,
possessing an open container of alcohol in a motor vehicle,
operating a motor vehicle without a license, and speeding. We
affirm.
I. Background
¶2 Kessler, who lived in Fraser, borrowed his father’s car to drive
to Denver to see his girlfriend. On his return, he was stopped by
police between Winter Park and Fraser for driving sixty-seven miles
per hour in a fifty-five mile per hour zone. Upon approaching the
car with a flashlight, the officer spotted a half-empty 375 milliliter
bottle1 of schnapps on the floor behind the passenger’s seat. The
officer asked Kessler for his license, registration, and proof of
insurance multiple times before Kessler responded by presenting
only the registration and proof of insurance; Kessler admitted that
he did not have a valid driver’s license.
1This is a pint. Glenn E. Rohrer et al., Calculation of Blood Alcohol
Concentration in Criminal Defendants, 22 Am. J. Trial Advoc. 177,
184 (1998).
1
¶3 Noticing that Kessler had watery, bloodshot eyes, slurred
speech, and an odor of alcohol on his breath, the officer asked him
to step out of the car. Kessler needed to use the car door for
support to get out of the car. When the officer asked if he had been
drinking, Kessler initially told the officer that he had not;
eventually, though, Kessler told him that he had drunk from the
bottle of schnapps. The officer then administered a roadside
sobriety examination of Kessler. After Kessler performed most of
the maneuvers unsatisfactorily,2 the officer administered a
preliminary breath test (PBT), which registered .154 g/210L, before
arresting him for driving under the influence (DUI) and placing him
in the back of a police car.
¶4 Two other officers searched the vehicle for further evidence of
alcohol consumption. Upon lifting the armrest over the center
console in the front seat, they discovered a bag containing a white
powdery substance that they suspected was, and which turned out
to be, cocaine.
2 Kessler recited the alphabet satisfactorily but showed signs of
alcohol impairment in the horizontal gaze nystagmus, walk and
turn, and one-legged stand parts of the standardized roadside
maneuvers.
2
¶5 Approximately three hours after Kessler’s arrest, a deputy
sheriff at the Grand County Jail administered a breath test as
Kessler had requested. The test results showed that he had a blood
alcohol content of 0.097g/210L.
¶6 At trial, Kessler testified that although he had been drinking,
he was not drunk, and that the cocaine found in his car did not
belong to him. It could have been put there, he posited, by others
(i.e., his girlfriend and a panhandler) who had been in the car
earlier that day.
¶7 The jury found Kessler guilty as charged.
II. Sufficiency of Evidence: Possession of a Controlled Substance
¶8 Kessler contends that the evidence was insufficient to convict
him of possessing a controlled substance (cocaine). We disagree.
¶9 As an initial matter, we reject the People’s position that this
issue was not properly preserved for appeal. Although Kessler did
not offer a precise argument, he did move for a judgment of
acquittal on this and all the other counts. In response, the
prosecution addressed each count in turn, including possessing a
controlled substance. The trial court then denied Kessler’s motion
after, like the prosecution, addressing each count and its specific
3
evidence. Because the trial court specifically addressed the count
that Kessler challenges on appeal, the issue is properly preserved.
People v. McFee, 2016 COA 97, ¶ 31 (“Where, despite imprecision in
the objection, the trial court actually rules on the claim raised on
appeal, and makes findings of fact and conclusions of law, the claim
is sufficiently preserved.”).
¶ 10 Turning to the merits, we note Kessler was convicted under
section 18-18-403.5(1), C.R.S. 2017, which provides, “it is unlawful
for a person knowingly to possess a controlled substance.” Here,
Kessler asserts that there was insufficient evidence from which a
jury could find that he possessed, or knowingly possessed, the
cocaine because he borrowed the car from his father, he was not in
exclusive control of the car on the date in question, and he denied
knowing the cocaine was in the car. In support of his assertion, he
advances two contentions — namely, that (1) where a person is not
in exclusive control of the area in which drugs are found, the
inference of possession may not be drawn unless statements or
other circumstances buttress that inference; and (2) the mere
presence of a drug does not, in and of itself, prove knowing
possession of it, see People v. Poe, 2012 COA 166, ¶ 16.
4
¶ 11 A flaw in Kessler’s arguments is their premises — that is, that
he was not in exclusive possession of the car (because others had
ridden in it that day) and that nothing besides the mere presence of
the cocaine was presented to show he knowingly possessed it. His
premises assume that the jury believed his version of events. Such
an assumption is given no effect, however, in assessing a sufficiency
of evidence issue.
When assessing the sufficiency of the evidence
supporting a conviction, we review the record
de novo to determine whether the evidence,
viewed in the light most favorable to the
prosecution, was both substantial and
sufficient to support the conclusion by a
reasonable mind that the defendant was guilty
beyond a reasonable doubt.
People v. Griego, 2018 CO 5, ¶ 24.
¶ 12 In analyzing the sufficiency of the evidence, we recognize that
(1) it is for the fact finder to determine the difficult questions of
witness credibility and the weight to be given to conflicting items of
evidence, see People v. Gibson, 203 P.3d 571, 575 (Colo. App. 2008);
(2) a fact finder is not required to accept or reject a witness’s
testimony in its entirety; it may believe all, part, or none of a
witness’s testimony, Gordon v. Benson, 925 P.2d 775, 778-79 (Colo.
5
1996); (3) an actor’s state of mind is normally not subject to direct
proof and must be inferred from his or her actions and the
circumstances surrounding the occurrence, People v. Phillips, 219
P.3d 798, 800 (Colo. App. 2009); (4) the prosecution must be given
the benefit of every inference that may fairly be drawn from the
evidence, People v. Heywood, 2014 COA 99, ¶ 1; (5) “[i]f there is
evidence upon which one may reasonably infer an element of the
crime, the evidence is sufficient to sustain that element,” People v.
Chase, 2013 COA 27, ¶ 50; and (6) “[w]here reasonable minds could
differ, the evidence is sufficient to sustain a conviction,” People v.
Bondurant, 2012 COA 50, ¶ 58 (quoting People v. Carlson, 72 P.3d
411, 416 (Colo. App. 2003)); see People v. Arzabala, 2012 COA 99,
¶ 13 (“An appellate court is not permitted to act as a ‘thirteenth
juror’ and set aside a verdict because it might have drawn a
different conclusion had it been the trier of fact.”).
¶ 13 Initially, we note that the possibility someone else was in the
car earlier that day does not change the fact that Kessler was in
exclusive possession of the vehicle when it was stopped and
searched, making him subject to the inferences that he knowingly
possessed the cocaine. See People v. Baca, 109 P.3d 1005, 1007
6
(Colo. App. 2004) (“[K]nowledge [of drugs] can be inferred from the
fact that the defendant is the driver and sole occupant of a vehicle,
irrespective of whether he is also the vehicle’s owner.”); see also
Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding that where the
defendant was the only person in a borrowed car when stopped, his
exclusive possession of the car was sufficient to raise a reasonable
inference of knowledge of the presence of contraband). Moreover,
as noted above, the jury was not bound to accept Kessler’s
testimony that others had been in the car that day — yet another
reason why, for sufficiency of evidence purposes, Kessler could be
considered to have been in exclusive possession of the car.
¶ 14 Furthermore, one officer testified that the cocaine was, upon
the simple movement of lifting the armrest, plainly visible — and
not covered by anything — in the console. This testimony, in
conjunction with the cocaine’s location just inches from where
Kessler sat on and off for ten hours that day, and Kessler’s
testimony that, to his knowledge, no one else had interacted with
the console, amply supported the inference that Kessler knowingly
possessed the cocaine. See People v. Warner, 251 P.3d 556, 564
7
(Colo. App. 2010) (“A conviction for possession of a controlled
substance may be predicated on circumstantial evidence.”).
III. Admission of Evidence Concerning the Cocaine Found in the
Car
¶ 15 On appeal, Kessler contends that the trial court should have
suppressed evidence related to the recovery of cocaine from his car
because the police lacked sufficient grounds to search the car once
they seized the half-empty bottle of schnapps. We disagree.
¶ 16 A district court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. People v. Glick, 250 P.3d
578, 582 (Colo. 2011); People v. Rabes, 258 P.3d 937, 940 (Colo.
App. 2010). We defer to the court’s findings of fact so long as they
are supported by competent evidence in the record, but we review
the court’s legal conclusions de novo. Glick, 250 P.3d at 582.
¶ 17 The Fourth Amendment to the United States Constitution
protects against unreasonable searches and seizures. People v.
D.F., 933 P.2d 9, 11-12 (Colo. 1997). Warrantless searches are
presumptively invalid unless justified by an established exception to
the warrant requirement. People v. Prescott, 205 P.3d 416, 419
(Colo. App. 2008). One such exception is the search of a vehicle
8
incident to a lawful arrest. People v. Coates, 266 P.3d 397 (Colo.
2011).3
¶ 18 In Arizona v. Gant, 556 U.S. 332 (2009), the United States
Supreme Court held that “[p]olice may search a vehicle incident to a
recent occupant’s arrest only if the arrestee is within reaching
distance of the passenger compartment at the time of the search or
it is reasonable to believe the vehicle contains evidence of the
offense of arrest.” Id. at 351.
¶ 19 Here, because Kessler had been removed from the car and
taken into custody before the search occurred, we are concerned
only with the second Gant situation — that is, whether it was
reasonable for the police to believe that Kessler’s vehicle contained
evidence of the offense of arrest, DUI.
¶ 20 Many state and federal courts hold “either ‘that the “nature of
the charge” is determinative of whether there exists a reasonable
basis to search for evidence’ or that reasonableness of belief should
3 This is the exception on which the parties and the court focused
in the trial court. Another exception is the automobile exception.
See People v. Zuniga, 2016 CO 52, ¶ 14. The applicability of the
automobile exception was not argued in the trial court or on appeal.
9
be determined ‘based upon common sense factors and the totality of
the circumstances.’” Rebecca A. Fiss, When “It Depends” Isn’t Good
Enough: The Problems Caused by the Supreme Court of North
Carolina’s Decision in State v. Mbacke, 91 N.C. L. Rev. 1404, 1435–
36 (2013) (footnote omitted) (first quoting Brown v. State, 24 So. 3d
671, 678 (Fla. Dist. Ct. App. 2009); then quoting United States v.
Reagan, 713 F. Supp. 2d 724, 728 (E.D. Tenn. 2010)); see State v.
Eversole, No. 15-17-03, 2017 WL 5127369, at *4 (Ohio Ct. App.
Nov. 6, 2017) (“Two primary approaches to Gant’s reason-to-believe
language have developed — the ‘categorical’ approach and the
‘reasonableness’ approach.”).
¶ 21 Some courts, using the categorical approach, have held that
an arrest for DUI in and of itself supplies the reason for a search
incident to arrest under Gant. See, e.g., People v. Nottoli, 130 Cal.
Rptr. 3d 884, 903 (Cal. Ct. App. 2011) (“[T]he search of the Acura
incident to Reid’s arrest for being under the influence was lawful
under Gant based on the nature of that offense.”); State v. Cantrell,
233 P.3d 178, 185 (Idaho 2010) (“In this case, Cantrell was arrested
for DUI, and the DUI supplied the basis for the search.”).
10
¶ 22 Other courts have rejected the categorical approach under
Gant in DUI situations, looking instead to the totality of the
circumstances to determine if the officer had a specific, reasonable,
and articulable suspicion apart from the mere nature of the offense
to justify a search of a vehicle incident to the arrest. See, e.g.,
United States v. Taylor, 49 A.3d 818, 824 (D.C. 2012); Taylor v.
State, 137 A.3d 1029, 1033-34 (Md. 2016).
¶ 23 In People v. Chamberlain, 229 P.3d 1054 (Colo. 2010), the
supreme court eschewed use of a categorical (or nature of offense)
approach to determining the validity of a search of a car incident to
arrest:
The nature of the offense of arrest is clearly
intended to have significance, and in some
cases it may virtually preclude the existence of
real or documentary evidence, but a broad rule
automatically authorizing searches incident to
arrest for all other offenses cannot be
reconciled with the actual holding of Gant.
Id. at 1057.
¶ 24 Consequently, “[u]nder the evidence-gathering rationale set
forth in [Gant], officers may search the passenger compartment of a
vehicle where the particular circumstances give rise to a reasonable
articulable suspicion that the vehicle might contain evidence of the
11
crime for which they had probable cause to arrest.” People v. Crum,
2013 CO 66, ¶ 2 (emphasis added) (citation omitted).
¶ 25 The reasonable suspicion standard requires “considerably less
than proof . . . by a preponderance of the evidence and is less
demanding even than the ‘fair probability’ standard for probable
cause.” People v. Polander, 41 P.3d 698, 703 (Colo. 2001). It is
satisfied if the police have specific and articulable facts, greater
than a mere hunch, to support their belief that evidence of the
crime for which the defendant was arrested might be in the car.
See People v. Huynh, 98 P.3d 907, 912 (Colo. App. 2004)
(discussing “reasonable suspicion” in the investigatory stop
context); see also People v. McCarty, 229 P.3d 1041, 1046 (Colo.
2010) (recognizing that, in the search of a vehicle context,
“reasonable suspicion” must be based on some minimal level of
objective suspicion, not merely a hunch or intuition, that evidence
might be found in the arrestee’s vehicle).
¶ 26 “In considering whether reasonable suspicion exists, the court
looks at the totality of the circumstances, the specific and
articulable facts known to the officer at the time of the encounter,
and the rational inferences to be drawn from those facts,” People v.
12
Garcia, 251 P.3d 1152, 1158 (Colo. App. 2010), in light of the
officer’s special training and experience, People v. Ortega, 34 P.3d
986, 994 (Colo. 2001); see United States v. Guerrero, 472 F.3d 784,
787 (10th Cir. 2007) (“[O]fficers [may] draw on their own experience
and specialized training to make inferences from and deductions
about the cumulative information available to them that ‘might well
elude an untrained person.’” (quoting United States v. Arvizu, 534
U.S. 266, 273 (2002))).
¶ 27 Here, the trial court determined that the evidence of cocaine
was admissible because of the following:
 The officer had probable cause to arrest Kessler for
driving under the influence based on his failure to
adequately perform the roadside sobriety tests, his
bloodshot eyes, the odor of alcohol on his breath, and the
PBT results.
 Kessler’s initial untruthfulness with the officer about
whether or not he had been drinking made it “reasonably
likely that they could find additional evidence [to support]
a criminal investigation in the vehicle.”
13
 One of the two officers who searched the vehicle stated,
based on his training and experience, it was “more
common than not” to find bottles of alcohol in a vehicle of
someone arrested for driving under the influence.
 The first officer had seen a half-empty bottle of schnapps
on the floor behind the passenger seat as he approached
the vehicle.
 Kessler’s intoxication, plus the officer’s observation of the
opened bottle of schnapps, justified the officers’ search of
the car for more bottles of alcohol.
¶ 28 We agree that the search that uncovered the cocaine was
justified. By virtue of the first four items identified above, the police
had more than ample grounds to reasonably suspect that the
vehicle would contain evidence (i.e., alcohol) related to the offense
for which Kessler was arrested. And they found that evidence —
alcohol, in the form of the half-empty bottle of schnapps — in the
car. The question, though, is did the officers’ reasonable suspicion
that the car contained alcohol evaporate once the officers found
some alcohol? In our view, it did not.
14
¶ 29 Our conclusion in this respect is supported by the decision of
the Wisconsin Court of Appeals in State v. Billips, 807 N.W.2d 32,
2011 WL 4578555 (Wis. Ct. App. 2011) (unpublished table
decision), a case that, in all material respects, parallels the
circumstances of the present case. In Billips, the defendant was
stopped for speeding. Upon approaching the defendant’s vehicle,
the officer saw what looked to be an open bottle of alcohol inside
the vehicle. He removed the opened bottle from the car, had the
defendant perform roadside sobriety tests, arrested him for
operating a vehicle while intoxicated (OWI), and searched the car for
any other open intoxicants. The officer found a marijuana cigar end
on the center console of the car and more marijuana inside a purse
on the backseat of the car, and the defendant was charged with
possession of tetrahydrocannabinols (THC). Unlike in our case, the
trial court suppressed the evidence of marijuana found in the
defendant’s vehicle. The State successfully appealed that ruling,
however.
¶ 30 In concluding that the search of the vehicle for more open
containers of alcohol was proper, the Wisconsin appellate court
rejected an argument identical to the one made by Kessler here —
15
that is, that the police had no ground to search the car further once
they seized the open bottle of alcohol therefrom:
[The defendant] contends that at the point of
her arrest, “it was not reasonable to believe
there would be any further physical evidence
of OWI in the vehicle. . . . [I]f [the defendant]
left intoxicants in plain view in her vehicle, it is
not reasonable to assume there were others
stashed away out of the deputy’s sight.” In
other words, [the defendant] argues that
because [the officer] had already removed some
evidence from her vehicle, it was not
reasonable to believe there would be any
further physical evidence of OWI in the vehicle.
This same argument was considered by this
court in State v. Smiter, 2011 WI App 15, ¶ 16,
331 Wis. 2d 431, 793 N.W.2d 920, and
rejected as “nonsensical.” There, the court
observed, “Gant expressly permits searches for
evidence relevant to the crime of arrest and
does not require police to stop that search
once some evidence is found.” Smiter, 331
Wis. 2d 431, ¶ 16.
Here, it was reasonable for [the officer] to
believe that further evidence related to [the
defendant’s] OWI arrest might be found in the
vehicle.
Id. at *2.
¶ 31 Persuaded by this analysis, we conclude that the search of the
car and discovery of the cocaine were proper.
16
IV. Admissibility of, and the Instruction on, the Breath Test
Results
¶ 32 In two related arguments, Kessler contends that the trial court
erred in (1) not suppressing the results of a breathalyzer test
performed outside the two-hour time period prescribed in section
42-4-1301.1, C.R.S. 2017;4 and (2) accordingly, instructing the jury
that the delay in testing went to the weight of the evidence.5 We
conclude that Kessler has waived these issues.
¶ 33 Kessler did not ask the trial court to suppress the results of
the breath test or otherwise argue to the trial court that they were
inadmissible. He also did not object to the instruction on the
ground asserted on appeal — namely, that a delay in testing
rendered the test results inadmissible.6
4 Section 42-4-1301.1, C.R.S. 2017, which is commonly referred to
as the “express consent” statute, allows a driver suspected of
drinking to choose a method of testing for his blood alcohol level:
breathalyzer or blood test; but the driver must choose one method
and may not refuse the test. See § 42-4-1301.1(2)(a)(I).
5 On appeal, Kessler objects to the part of an instruction that said,
“[a]ccording to the law, two hours is considered a reasonable time.
A test taken outside of two hours may affect the weight that should
be given to results of the test.”
6 To be sure, defense counsel did object to the instruction — but on
grounds different from those asserted on appeal. In the trial court,
he objected to the instruction because it included various
17
¶ 34 So, Kessler has presented a new, or additional, argument on
appeal. Sometimes, we review a new or additional argument raised
for the first time on appeal for plain error. People v. Mares, 263
P.3d 699, 702 (Colo. App. 2011) (“When, as here, a defendant fails
to object or asserts on appeal a ground different from the ground
asserted in the trial court, we review for plain error.”).
¶ 35 However, in this case, the new ground (i.e., that the delay in
conducting the breath test rendered its results inadmissible) for
both of his appellate arguments was explicitly disavowed by defense
counsel in the trial court. In prefacing the objection he made to the
instruction, see supra note 6, defense counsel took the position that
the tests were admissible and that the only question was the weight
to be given them: “I do not disagree with the Court in terms of the
admission of the test . . . . So the test was admitted. We can
certainly argue the weight.”
¶ 36 By agreeing that the test results were admissible and that the
delay in conducting the tests affected only their weight, defense
counsel waived Kessler’s right to argue, as he does here, precisely
presumptions about blood alcohol levels obtained within a
“reasonable time frame,” which, he said, “we do not have here.”
18
the opposite. See, e.g., United States v. Olano, 507 U.S. 725, 733
(1993) (stating that a waiver occurs when a defendant specifically
removes claims from the trial court’s consideration by intentionally
relinquishing or abandoning a known right); United States v.
Walton, 255 F.3d 437, 441 (7th Cir. 2001) (a “waived” issue is the
result of an “intentional choice not to assert [a] right” (quoting
United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001))).
¶ 37 Recently, our supreme court held that defense counsel’s
general acquiescence to the jury instructions did not waive the
defendant’s appellate claim that the elemental instruction effected a
constructive amendment of the charge, at least in the absence of
other indications that counsel was aware of the defect in the
elemental instruction. See People v. Rediger, 2018 CO 32, ¶¶ 41-
47. Here, however, an elemental instruction is not at issue, and
defense counsel did more than generally acquiesce or fail to object.
Defense counsel explicitly agreed that the specific evidence at issue
was admissible. So, Kessler, through his counsel, intentionally
waived the particular point raised on appeal.
¶ 38 Because defense counsel explicitly waived the very claim
Kessler makes on appeal, there is no issue of error for us to review.
19
See People v. Abeyta, 923 P.2d 318, 321 (Colo. App. 1996) (stating
that where a defendant has waived a right, there is no error or
omission by the court, and thus nothing for an appellate court to
review), superseded by rule, Crim. P. 35(c), on other grounds as
recognized in People v. Roy, 252 P.3d 24, 27 (Colo. App. 2010); see
also Olano, 507 U.S. at 733 (distinguishing between a “waived” and
a “forfeited” claim of error, and noting that a “waived” claim of error
presents nothing for an appellate court to review); Walton, 255 F.3d
at 441 (“[A] waived issue is unreviewable because a valid waiver
leaves no error to correct and extinguishes all appellate review of
the issue.”).
V. Questioning Kessler About An Officer’s Veracity
¶ 39 At trial, the amount of alcohol in the bottle of schnapps when
the officer discovered it was contested: the officer said it was half
full, while Kessler testified it was two-thirds full. During cross-
examination, the prosecution asked Kessler if the officer “made up”
the amount of schnapps in the bottle, to which Kessler responded,
“Yeah. I didn’t say that to him.”
¶ 40 On appeal, Kessler contends that the prosecution’s question
was improper under Liggett v. People, 135 P.3d 725 (2006), in which
20
the supreme court held that it is improper to ask a witness to
comment on the veracity of another witness. Significantly, however,
defense counsel lodged no objection to the question; consequently,
reversal is not warranted in the absence of a showing of plain error.
People v. Ujaama, 2012 COA 36, ¶ 38.
¶ 41 Plain error “provide[s] a basis for relief only on rare occasions,”
in part because “it is difficult to ‘fault a trial court for failing to rule
on an issue that had not been presented to it.’” Id. at ¶ 40 (quoting
United States v. Simmonds, 931 F.2d 685, 688 (10th Cir. 1991)).
Relief under the plain error doctrine is limited to error that is
“obvious and substantial.” Hagos v. People, 2012 CO 63, ¶ 14.
¶ 42 Under Liggett, the prosecutor’s question (i.e., asking Kessler if
the officer “made up” the amount of schnapps in the bottle) would
ordinarily be improper because it was, in essence, another way of
asking Kessler whether the officer was “lying.” See Liggett, 135 P.3d
at 733 (holding questions asking one witness whether another
witness was “mistaken” are improper).
¶ 43 But the People argue those questions were not improper in this
case because Kessler had opened the door to such questioning
when he initiated the exchange by stating that the officer
21
“exaggerated” when he testified that Kessler admitted to having
drunk half of the bottle. See, e.g., United States v. Schmitz, 634
F.3d 1247, 1270 (11th Cir. 2011) (The court “recogniz[ed] that were-
they-lying questions might be proper ‘if a defendant opened the
door by testifying on direct that another witness was lying.’”
(quoting United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006))).
¶ 44 The problem with the People’s argument, however, is that the
testimony of Kessler on which they rely was not elicited by him on
direct examination, but, rather, by them earlier in their cross-
examination of him. Because a party cannot open its own door to
create an opportunity for the admission of otherwise inadmissible
evidence, see State v. Prine, 200 P.3d 1, 11 (Kan. 2009), we
conclude that, had a proper objection been made, the trial court
would have erred in allowing the prosecutor to ask Kessler the
referenced question.
¶ 45 But “[t]o qualify as plain error, an error must generally be so
obvious that a trial judge should be able to avoid it without the
benefit of an objection.” Scott v. People, 2017 CO 16, ¶ 16. For an
error to be “this obvious,” it must ordinarily contravene (1) a clear
22
statutory command; (2) a well-settled legal principle; or (3) Colorado
case law. Id.
¶ 46 Here, we have neither a clear statutory command nor on-point
Colorado case authority. We do, however, have a “well-settled legal
principle” — namely, that witnesses should not be asked to
comment on the veracity of other witnesses — as well as a twelve-
year-old case holding that questions closely analogous to the
question asked of Kessler (i.e., whether the officer “made up” the
amount he said was in the bottle of schnapps) are improper. See
Liggett, 135 P.3d at 733 (holding questions about whether a witness
was “mistaken” and whether a witness was lying are improper).
Because the case law establishing and applying the legal principle
in closely analogous circumstances is well settled, we conclude that
the error in allowing those two questions should have been
“obvious” to the trial court.
¶ 47 However, to obtain relief under the plain error rule, it is not
enough that “obvious” error occurred when the prosecutor was
allowed to ask Kessler whether the officer “made up” something.
The error must also be “substantial.” Hagos, ¶ 14.
23
¶ 48 To qualify as “substantial” in this context, an error must be
“seriously prejudicial” — that is, it must have so undermined the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the defendant’s conviction. Ujaama, ¶ 43; see also
Hagos, ¶ 14. For the following reasons, we conclude that the
“obvious” error occasioned by the prosecutor’s asking Kessler
whether the officer “made up” the amount of alcohol was not
“substantial.”
¶ 49 First, the question the prosecutor asked was not only a small
part of the case, it was also a small part of Kessler’s twenty pages of
testimony. Cf. People v. Herr, 868 P.2d 1121, 1125 (Colo. App.
1993) (prosecutor’s “improper comments were isolated ones made
during a very lengthy summation”).
¶ 50 Second, similar to Liggett — where the court found no plain
error — an assertion that the officer “made up” things was less
damaging than a question that would have explicitly asserted that
the officer was lying. Liggett, 135 P.3d at 735.
¶ 51 Third, the evidence against Kessler was strong. The
prosecution presented (1) the officer’s testimony regarding Kessler’s
appearance and unsatisfactory performance in the roadside
24
maneuvers; (2) Kessler’s blood alcohol level results from the
breathalyzer test; and (3) Kessler’s own admission that he had
drunk from the bottle of schnapps. See People v. Cordova, 293 P.3d
114, 122 (Colo. App. 2011) (because “the evidence of [the]
defendant’s guilt was strong,” prosecutor’s misconduct was not
plain error).
¶ 52 In light of these circumstances, we conclude that the
prosecutor’s question did not cast serious doubt on the reliability of
Kessler’s conviction. Consequently, the error was not “substantial”
and does not warrant reversal under the plain error rule.
VI. Conclusion
¶ 53 The judgment of conviction is affirmed.
JUDGE NAVARRO concurs.
JUDGE DAILEY concurs in part and dissents in part.
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JUDGE DAILEY, concurring in part and dissenting in part.
¶ 54 I agree with all but Part III of the majority’s opinion. Unlike
the majority, I do not find persuasive the decision in State v. Billips,
807 N.W.2d 32, 2011 WL 4578555 (Wis. Ct. App. 2011)
(unpublished table decision). To the contrary, in my view the police
were required to have a factual basis upon which to support an
articulable, reasonable suspicion to believe that the vehicle might
contain one or more bottles of alcohol in addition to the one initially
observed in and recovered from the car. Accepting that Kessler was
intoxicated, there is no reason evident in the record to believe that
he likely consumed more than the observed, half-empty bottle of
schnapps.
¶ 55 The People argue, however, that the officers’ experience and
training supported the search for more bottles of alcohol. But the
officers did not give any details about their training or experience
with DUI arrests or provide any particularized reason based on that
experience or training to believe that Kessler’s vehicle might contain
evidence of even more consumed alcohol than the already recovered
half-empty bottle of schnapps. In similar circumstances, the
District of Columbia Court of Appeals said:
26
As we have explained, [the officer’s] experience
must be considered as part of the totality of
the circumstances. In this case, however, “we
know too little about [the officer’s] experience,”
Duckett v. United States, 886 A.2d 548, 552
(D.C. 2005), to place much weight upon his
conclusory statement that “typically someone
who is driving under the influence also has an
open container of alcohol or multiple
containers of alcohol in their vehicle.” Without
a great deal more detail, we have no basis for
determining whether such behavior is indeed
“typical” of someone driving under the
influence. Moreover, relying uncritically on that
experience would amount to endorsing a per se
rule governing DUI cases. See id. at 553
(“Whatever [the officer’s] experience in traffic
stops of others, we think that the necessary
particularized and objective basis for
suspecting [the defendant] was absent here.”).
United States v. Taylor, 49 A.3d 818, 827 (D.C. 2012) (emphasis
added); see United States v. Reagan, 713 F. Supp. 2d 724, 732 (E.D.
Tenn. 2010) (holding an officer must have something more than
general prior experience of finding alcoholic beverage containers in
a DUI arrestee’s vehicle to justify a search of the vehicle); see also
State v. Eversole, No. 15-17-03, 2017 WL 5127369, at *10 (Ohio Ct.
App. Nov. 6, 2017) (“[A]lthough a law-enforcement officer’s general
prior experience is one of the common-sense factors to consider
when deciding the reasonableness of his or her belief that evidence
27
of specific crime is located inside a vehicle’s passenger
compartment, that general prior experience alone is not enough to
establish a reasonable belief that evidence of [DUI] is contained in a
vehicle.”).
¶ 56 I am persuaded by these authorities. And because the record
contains no reason particularized to Kessler or the circumstances of
this case, I would conclude that the police lacked the requisite
reasonable suspicion to further search the car for alcohol once they
recovered the half-empty bottle of schnapps. See People v. McCarty,
229 P.3d 1041, 1046 (Colo. 2010) (“[A]lthough it is perhaps
conceivable that the arrestee’s vehicle might contain some evidence
of the possession offense for which the officers had probable cause
to arrest, nothing peculiar to these circumstances supported a
reasonable suspicion that any additional evidence existed, much
less that it would reside in the arrestee’s vehicle, rather than on his
person or elsewhere.”) (emphasis added); cf. People v. Estrada, No.
B221094, 2011 WL 212826, at *5-6 (Cal. Ct. App. Jan. 25, 2011)
(unpublished opinion) (rejecting, under Gant, the validity of a
search of a vehicle, where, following the defendant’s arrest for
public intoxication, the officer “‘opened the truck, discovered the
28
container that [the defendant] tossed in there,’ which was . . .
exactly the type of bottle from which [the officer] believed defendant
had been drinking,” and “continued to look in the car to see if there
was [sic] any other alcoholic beverages and what not”; and
concluding, “[t]o allow a search of a vehicle here would be to permit
general rummaging”).
¶ 57 Because the search that uncovered the cocaine was illegal, all
evidence pertaining to the cocaine or its recovery should have been
suppressed at trial. The error in admitting such evidence could not
be considered harmless with respect to the count charging Kessler
with its possession, and Kessler’s conviction on that count should
be vacated.
29