UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TIMOTHY AMOS MERRITT, Defendant - Appellant.
No. 18-1146
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
June 10, 2020
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00365-REB-1)
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
The government charged Merritt with second-degree murder for the death of Cecil Vijil in violation of
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
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
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
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
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 sobriety test, because she
II. ANALYSIS
A district court has broad discretion to determine the admissibility of evidence, United States v. Henthorn, 864 F.3d 1241, 1248 (10th Cir. 2017), and we review the district court’s ruling for abuse of discretion, United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001). “Under this standard, we will not disturb a trial court’s decision unless we ‘ha[ve] a definite and firm conviction that the [trial] court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.’” United States v. Leonard, 439 F.3d 648, 650 (10th Cir. 2006) (alterations in original) (citations omitted).
Evidence of crimes, wrongs, or other acts is not admissible “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”
“(1) The evidence must be offered for a proper purpose under Rule 404(b); (2) [t]he evidence must be relevant under Rule 401; (3) [t]he probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice under Rule 403; and (4) [t]he district
court, upon request, must have instructed the jury pursuant to Rule 105 to consider the evidence only for the purpose for which it was admitted.”
Henthorn, 864 F.3d at 1247–48 (citing Huddleston v. United States, 485 U.S. 681, 691–92 (1988)). Only the first and third requirements are at issue here.
A. Admissibility of the 2012 and 2014 Incidents
1. Proper Purpose
The first requirement mandates the evidence be offered for a proper purpose under Rule 404(b). While evidence may not be offered to prove character as a basis for raising the inference that conduct on a particular occasion was in conformity with this character trait, it can be offered for any of the enumerated purposes in Rule 404(b)(2). Because only one use is forbidden and several permissible uses are identified, we have characterized Rule 404(b) as “illustrative, not exhaustive.” United States v. Brooks, 736 F.3d 921, 939 (10th Cir. 2013) (quoting Tan, 254 F.3d at 1208). That is, Rule 404(b) admits “all evidence of other crimes or acts except that which tends to prove only criminal disposition.” Id.
To obtain a second-degree murder conviction, the government was required to prove Merritt acted with “malice aforethought.” See
Because malice aforethought clearly does not extend to mere negligence, the government offered evidence of Merritt’s 2012 and 2014 incidents to prove he “knew that his conduct [in the August 2016 incident] posed a serious risk of death or harm to himself or others, but [that he] did not care.” Id. The district court admitted this evidence to allow the government to prove Merritt’s intent: that he acted with malice aforethought when he killed Cecil Vijil. See ROA Vol. I at 154–55.
Merritt concedes that “[t]he stated purpose for which the government sought to introduce the [2012 and 2014 convictions] was not improper.” Aplt. Br. at 22. Indeed, this purpose has been specifically contemplated by our court and is plainly proper. In Tan, we recognized past convictions of drunk driving were “highly probative of malice” for a later drunk driving incident. 254 F.3d at 1211. As we explained, “[o]ne who drives a vehicle while under the influence after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others.” Id. at 1210 (quoting People v. Brogna, 248 Cal. Rptr. 761, 766 (Cal. App. 1988)) (internal quotation marks omitted). Accordingly, we held that “prior drunk driving convictions offered to prove the malice component of a second degree murder charge resulting from an alcohol related vehicular homicide are offered for a proper purpose under Rule 404(b).” Id. at 1211. The prior convictions here are therefore offered for a proper purpose.
Nothing in the text of Rule 404(b) supports Merritt’s restrictive reading. Rule 404(b)(1) states that “[e]vidence of a crime, wrong, or other act” is not admissible to prove character as a basis for suggesting an inference that conduct on a particular occasion was in conformity with it. See
And we have held any evidence that is relevant to a proper purpose can be admitted. For this reason, we consider Rule 404(b) “to be an inclusive rule, admitting all evidence of other crimes or acts except that which tends to prove only criminal disposition.” Tan, 254 F.3d at 1208 (quoting United States v. Van Metre, 150 F.3d 339, 349 (4th Cir. 1998)) (internal quotation marks omitted).
Most importantly, we find the facts and circumstances of Merritt’s 2012 and 2014 convictions help establish that he acted with malice aforethought during his
The facts underlying Merritt’s 2012 DUI conviction support the inference that he was subsequently aware that his ability to control an automobile becomes seriously impaired when he is intoxicated. At around noon on December 29, 2012, Officer Keams testified he saw a gray sedan traveling southbound in the northbound lane of traffic. Due to the erratic driving of this sedan, several vehicles—including Officer Keams himself—had to stop and in some cases pull onto the shoulder to avoid crashing into Merritt’s sedan. But the dangerous driving behavior was not over. After Keams turned on his emergency lights and sirens to no avail, he watched the sedan dart across two lanes of traffic to pull into a gas station. During the timeframe Keams witnessed, Merritt endangered the lives of many people: his own life, his passenger’s life, and the people in the cars who had to stop to avoid colliding with Merritt’s sedan.
While Merritt’s 2014 conviction did not involve driving under the influence—instead revolving around charges of intoxication and a violation of applicable liquor laws—evidence from this arrest was properly offered to similarly prove that Merritt acted with malice aforethought during the August 2016 accident. At the time of his 2014 arrest, security supervisor Laner observed Merritt stumbling back to his truck
The district court concluded the similarities between these two convictions and the August 2016 accident “make it less probable that Mr. Merritt’s decision to drive while intoxicated in this instance was unwitting or simply a one-off. Instead, they support a logical inference that his choices—and thus his state of mind—exhibited the type of callous indifference indicative of malice.” ROA Vol. I at 157–58. In reaching this decision, the district court did not abuse its discretion.
The facts and circumstances of these two convictions demonstrate Merritt must have been aware of at least two propositions prior to his August 2016 arrest: (1) that drinking compromised his ability to safely operate a vehicle and (2) that driving while intoxicated could place others’ lives at risk. And in a manner not conveyed by the mere fact that he had two past convictions, the particularized circumstances of
Even some of the additional details from these convictions—Merritt vomiting out the window, his difficulty maintaining his balance while walking, and slurring of speech—have the tendency to convey Merritt’s degree of intoxication and his inability to safely operate his vehicle while drinking. A jury could infer from these facts that Merritt is especially aware of the problems and risks associated with drunk driving, yet nevertheless chose to drive drunk again.3 Further, these facts play
another role: they help rebut Merritt’s own argument that habitual drinkers like himself might have better alcohol tolerance and therefore drive safer than others who choose to drink and drive. See ROA Vol. VI at 854 (arguing in closing that “[h]abituated drinkers can tolerate alcohol better than others“). Vomiting out the window helps refute Merritt’s own contention that habitual drinkers necessarily tolerate alcohol better than others.
Finally, we reject Merritt’s characterization of the legal rule that emerges from our decision in Tan: “when a driver is convicted of DUI, he is put on notice that society disapproves of drinking and driving, and a person who has been convicted of such activity is more aware than the general public that this conduct puts society at risk.” Aplt. Br. at 23. Merritt therefore argues under Tan, only the conviction itself is significant because it is the conviction that makes the defendant aware of society’s disapproval of drinking and driving. Id. But we do not read Tan so narrowly. In Tan, we allowed evidence of the defendant’s prior drunk-driving convictions because:
“A jury could infer from Defendant’s prior drunk driving convictions that he is especially aware of the problems and risks associated with drunk driving. We agree that ‘[o]ne who drives a vehicle while under the influence after having been convicted of that offense knows better
than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others.’”
Tan, 254 F.3d at 1210 (quoting Brogna, 248 Cal. Rptr. at 766). Thus, the key to the holding in Tan was the defendant’s awareness of the “problems and risks associated with drunk driving,” not simply society’s disapproval of drunk driving. Under this rationale, any facts relevant to the defendant’s awareness of these “problems and risks” are admissible to prove malice.
The mere fact that Merritt had a previous drunk-driving conviction—devoid of any accompanying context—may not convey Merritt acted with the requisite general intent needed on August 3, 2016 to convict him of second-degree murder. But the particularized circumstances of these arrests help establish Merritt knew he could not drive safely when intoxicated, even if perhaps other habitual drinkers could. Such testimony does not run afoul of Rule 404(b).
We hold that to the extent the facts of prior convictions tend to show the defendant’s awareness of the dangers posed by drunk driving, those facts are offered for a proper purpose under Rule 404(b). The facts and circumstances of these past convictions were thus properly admitted to establish the element of malice required for the proof of second-degree murder.
2. Probative Value Versus Unfair Prejudice
Even if prior acts evidence is offered for a proper purpose under Rule 404(b), however, it still must survive the Rule 403 balancing test to be admitted. See Tan, 254 F.3d at 1211. Evidence is excluded under Rule 403 “if its probative value is
“Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury’s attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged.” Henthorn, 864 F.3d at 1256 (internal quotation marks and citation omitted). In weighing the probative value of the evidence against the prospects of unfair prejudice, courts must “‘give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.’” Id. (quoting United States v. Cerno, 529 F.3d 926, 935 (10th Cir. 2008)). We have counseled that “‘it is not enough that the risk of unfair prejudice be greater than the probative value of the evidence; the danger of that prejudice must substantially outweigh the evidence’s probative value.’” Id.
Merritt’s argument for excluding the evidence under Rule 403 is not strong enough to overcome these considerable hurdles. He argues the facts and circumstances were “inflammatory” and their presentation encouraged the jury to conduct a “referendum on Mr. Merritt’s general character for callousness.” Aplt. Br. at 18–19. He points to evidence like Merritt’s vomiting and falling down during field
In admitting the challenged evidence, the district court reasoned that “this evidence is not likely to induce the jury to make an emotional decision entirely divorced (i.e., ‘wholly apart’) from its relevance in establishing malice aforethought.” ROA Vol. I at 158–59. The court found the evidence was “highly probative of Mr. Merritt’s state of mind,” and that any prejudice resulting from the admission of these facts and circumstances would not substantially outweigh the evidence’s probative value. Id. at 159.
In making his case, Merritt seems to question whether these facts and circumstances possessed much probative value. See Aplt. Br. at 30 (stating “[t]he probative value of the evidence, if any, was substantially outweighed by the danger of unfair prejudice.“); see also Reply Br. at 4 (arguing “there is little probative value to this kind of evidence“). Contrary to Merritt’s position, these facts and circumstances are highly probative. Where, as here, the facts and circumstances are used to prove malice, “an element of [second-degree murder] . . . they have significant probative value.” Tan, 254 F.3d at 1212.
And we have already detailed how the facts and circumstances of Merritt’s two past convictions were directly relevant to the government’s task in proving he acted with the required general intent to support a second-degree murder conviction for the August 2016 accident. Merritt driving the wrong direction on a busy highway in 2012 could have resulted in numerous deadly accidents, but for other drivers stopping
In giving these facts and circumstances their maximum reasonable probative force and the minimum reasonable prejudicial value, Henthorn, 864 F.3d at 1256, we do not find the district court committed a clear error in judgment by admitting this evidence. We recognize the assessment of the probative value of the proffered evidence and the simultaneous weighing of any factors counseling against admissibility “is a matter first for the district court’s sound judgment” under Rule 403. United States v. Abel, 469 U.S. 45, 54 (1984). Under this fact-intensive Rule 403 balancing inquiry, we cannot say the district court abused its considerable discretion.4
B. Admissibility of the November 2016 Incident
Merritt also argues the district court erred in allowing the government to present evidence of his November 2016 drunk driving arrest, which occurred after the August 3, 2016 drunk driving incident that killed Cecil Vijil. See Aplt. Br. at 24–26, 34. He argues that evidence of this subsequent act had no relevance to his prior mental state and that the potential for prejudice of this particular evidence was extreme.
In requesting admission of this subsequent act, the government argued this arrest was relevant because Merritt’s intent was at issue in this case. See ROA Vol. I at 98–99. According to the government, that Merritt “would drive drunk while on bond for a drunk driving offense in which he killed someone, and while under court order not to drink, [spoke] volumes about [his] extreme indifference.” Id. at 100. And it was this same extreme indifference to serious risk of death or serious bodily harm which the government needed to prove to establish malice aforethought.5
Recognizing that Merritt’s intent during his August 2016 accident was to be the central issue of the trial, the district court found Merritt’s November 2016 incident was relevant. What resonated with the district court were the similarities between the subsequent act and his August 2016 crash. See ROA Vol. I at 156–57.
In Henthorn, we described this doctrine as “merely one name to call a common sense observation that a string of improbable incidents is unlikely to be the result of chance.” 864 F.3d at 1252 n.8 (internal quotation marks and citation omitted). Although our court has never formally adopted this doctrine, we have acknowledged it in upholding the relevance of prior acts evidence to prove intent in the charged case. Id. (citation omitted).
Rule 404(b), by its very terms, does not distinguish between “prior” and “subsequent” acts. And in United States v. Davis, we explained: “[w]e have
But today, we need not decide whether the “doctrine of chances” or Rule 404(b) properly supported admission of evidence pertaining to the November 2016 arrest, nor do we consider more generally whether the district court abused its discretion by admitting such evidence. Instead, we conclude that any error in the admission of evidence pertaining to the November 2016 arrest was harmless. Because Merritt does not argue there is constitutional error, the allegedly erroneous admission of evidence is subject to harmless error review. See United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir. 2004). Under this analysis, an error is
“When the evidence against a defendant is overwhelming, an erroneous admission of [subsequent] convictions is harmless—especially when the trial court issues a proper limiting instruction.”6 United States v. Caldwell, 589 F.3d 1323, 1334 (10th Cir. 2009) (citations omitted). Given the overwhelming evidence of guilt in the record stemming from Merritt’s 2012, 2014, and August 2016 incidents, we conclude that any error in admitting his November 2016 arrest did not have a “substantial influence” on his second-degree murder conviction.
As described above, evidence from Merritt’s 2012 and 2014 convictions support the inference that in August 2016, he was aware his drunk driving posed a
It is within this context that the jury heard evidence of the charged offense at issue in this appeal, the August 2016 arrest. On August 3, 2016, Merritt was traveling with alcohol in his car and driving against traffic almost entirely in the wrong lane when the vehicles collided. When one of the officers approached Merritt, she observed Merritt’s eyes were bloodshot and his speech was slurred. The alcohol also affected Merritt’s balance—he was unable to walk in a straight line. His blood alcohol level was later determined to be between .23 and .25 at the time of the crash, well above the legal limit of .08.
Critical to our harmlessness finding is that malice aforethought was clearly established at trial prior to the introduction of any evidence of Merritt’s November 2016 arrest. We find that the evidence of his past convictions coupled with the facts and circumstances of his August 2016 arrest unequivocally support the jury’s finding that Merritt acted with malice aforethought when he killed Cecil Vijil. Accordingly, any error in admitting evidence of Merritt’s November 2016 arrest would not have
IV. CONCLUSION
For the reasons explained above, we AFFIRM Merritt’s second-degree murder conviction.