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. Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00365-REB-1). Christopher M. Wolpert, Clerk of Court.
Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado,
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
Exercising our jurisdiction under
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
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
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
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 sobriety test, because she worried Merritt would fall over and injure himself. Id. at 355. She ultimately arrested Merritt for driving under the influence, weaving, and disobedience of a lawful order of the
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 underRule 401 ; (3) [t]he probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice underRule 403 ; and (4) [t]he district court, upon request, must have instructed the jury pursuant toRule 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
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
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
Instead, Merritt argues the district court “should not have admitted the facts and circumstances of the prior convictions” because they were not relevant to whether or not he was on “notice” concerning the dangers of drunk driving. Aplt. Br. at 24. In response, the government contends the facts and circumstances of these past convictions do indeed reveal Merritt was “more aware of the dangers that he specifically pose[d] to others when he dr[ove] drunk.” Aple. Br. at 20. We agree with the government.
Nothing in the text of
And we have held any evidence that is relevant to a proper purpose can be admitted. For this reason, we consider
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 August 2016 accident. From the particular facts and circumstances of these past convictions, the jury was warranted in inferring that Merritt was not merely cognizant of, but clearly aware of, the dangers he posed to others when he drove intoxicated. As such, these facts and circumstances were offered for a proper purpose.
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.
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 from one of the gas pumps. What is more, his breath smelled like alcohol, he was slurring his speech, and his eyes were bloodshot. Alarmed, Laner called the police. The responding officer concluded Merritt was intoxicated and placed him under arrest. Not only was there a passenger in Merritt’s truck, but a search of the truck revealed an empty beer can in the center console as well as an unopened six-pack of beer. These facts suggest Merritt had been driving in an intoxicated state and intended to continue to do so. If the 2012 DUI had not sufficiently conveyed to Merritt the dangers he posed to others while driving drunk, then he should have been on notice after this second arrest and conviction. In part, that is because these convictions “convey to the malefactor society’s considered view that the cited conduct is dangerous.” Leonard, 439 F.3d at 651.
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 these convictions lead to these inferences (offered to prove malice aforethought in the August 2016 accident). Indeed, if the government had only been permitted to inform the jury of Merritt’s record—stripped of any details—the only inference that arises is an impermissible one: Merritt has a propensity to drive while intoxicated, and he acted in accordance with this character trait when he killed Cecil Vijil. But taken together, the facts and circumstances of these two convictions were relevant to establish that on August 3, 2016, Merritt had grounds to be aware of the risk his drinking and driving while intoxicated presented to others. For example, driving while intoxicated in 2012 forced multiple cars to halt or pull onto the shoulder, lest they risk a head-on collision with Merritt. And his 2014 conviction revealed he may become seriously impaired while under the influence of alcohol. The facts and circumstances of these past convictions were thus properly admitted to
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
We hold that to the extent the facts of prior convictions tend to show the defendant’s awareness of the dangers posed by
2. Probative Value Versus Unfair Prejudice
Even if prior acts evidence is offered for a proper purpose under
“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
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.
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
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
On appeal, the government argues that the November 2016 arrest demonstrates Merritt “did not act with a more innocent mental state” during his August 2016 accident. Aple. Br. at 23. Relying on “the doctrine of chances,” the government argues “the existence of other, similar acts makes it less likely that a defendant committed the charged act with an innocent (or less culpable) mental state.” Id. at 24. So “while a single event might have an innocent explanation, the defendant’s act takes on an entirely different light . . . in the context of other misdeeds.” Id. (internal quotation marks and citation omitted). And that is why, according to the government, it does not matter that this November 2016 arrest occurred after the charged act. Instead of relying on the improper inference that Merritt has a propensity to drive while intoxicated, this probability theory, the argument continues, gives rise to the idea that because Merritt “has been involved in similar incidents so often,” it is “objectively unlikely” that Merritt drove with an innocent mental state in August 2016. Id. at 28–29 (internal quotation marks and citation omitted).
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).
But today, we need not decide whether the “doctrine of chances” or
“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 serious risk of death or serious bodily harm to others. Whether it was driving the wrong way on the highway in 2012—thereby forcing numerous drivers to halt or pull off onto the shoulder—or his inability to walk straight or coherently speak after excessive drinking in 2014, Merritt “knows better than most that [driving while intoxicated] is not only illegal, but entails a substantial risk of harm to himself and others,” Tan, 254 F.3d at 1210 (internal quotation marks and citation omitted). The district court, as we conclude above, did not abuse its discretion in allowing the jury to hear evidence of the 2012 and 2014 convictions.
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,
IV. CONCLUSION
For the reasons explained above, we AFFIRM Merritt’s second-degree murder conviction.