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People v. Herold.

2024 COA 53. No. 22CA1265. DUI—Prior Convictions—Specific Corroborating Evidence of Identification—Defendant’s Identity as Element of Crime or Sentence Enhancer—Sufficiency of Evidence—Prosecutorial Misconduct.

May 16, 2024

Police responded to a call reporting an intoxicated individual “passed out behind the wheel of a van” in the parking lot of an apartment complex. Sergeant Sherrill arrived at the parking lot and saw Herold on his hands and feet in a landscaping rock bed, in front of a running van. Herold told Sergeant Sherrill that he fell out of the van into the rocks. Herold was arrested and charged with class 4 felony driving under the influence (DUI) (fourth or subsequent offense). Defense counsel conceded at trial that Herold was drunk throughout his interaction with the officers but argued that he had not driven the van the day of his arrest. Rather, a coworker had borrowed the van and left it running in the parking lot of Herold’s apartment complex to recharge the battery. The court admitted into evidence conviction records from four earlier DUI and driving while ability impaired (DWAI) cases showing the exhibit number of the conviction record at Herold’s trial, the year of the conviction, the name of the person with the prior conviction, such person’s date of birth, the person’s physical description and distinguishable features (if the conviction record contains any), and the county in which the offense occurred. Herold was convicted as charged.

On appeal, Herold argued that there was insufficient evidence to convict him of felony DUI because the prosecution failed to present specific corroborating evidence of identification connecting him to three or more prior DUI or DWAI convictions. In prosecutions for felony DUI, a conviction for DUI or DWAI is elevated from a misdemeanor to a class 4 felony upon proof beyond a reasonable doubt that the defendant had three or more prior convictions for DUI, DUI per se, or DWAI. Under Gorostieta v. People, 2022 CO 41, the fact that the defendants in the present and prior cases have the same name and date of birth, without more, is generally insufficient to prove that the defendant has a prior conviction. The prosecution must present documentary evidence combined with specific corroborating evidence of identification connecting the defendant to the prior felony conviction, such as a driver’s license, prison identification number, or social security number; photographs or fingerprints from the prior case that link that case to the current defendant; or a physical description from the prior case that can be compared to the defendant in the present case. Accordingly, a description that the person with the prior conviction was a “Caucasian male” with the same name and date of birth as the defendant is insufficient corroborating evidence to support a defendant’s conviction for felony DUI. Here, while three of the prior conviction records describe the offender as a “Caucasian male,” as is Herold, this descriptor, without more, even when coupled with name and date of birth, is not sufficiently specific to corroborate identification. Therefore, there was insufficient evidence to convict Herold of felony DUI, and under double jeopardy principles, Herold thus cannot be retried for felony DUI.

Herold also argued that the court erred by denying his motion to suppress incriminating statements in the officers’ bodycam recordings because he made them during a custodial interrogation before receiving a Miranda warning. However, even if the court erred by admitting any portion of the recordings, given the overall strength of the prosecution’s case, such error was harmless beyond a reasonable doubt.

Herold further contended that the prosecutor engaged in misconduct during closing argument by misstating the facts, opining on evidence, and denigrating the defense. Here, in reiterating a witness’s testimony, the prosecutor correctly recounted what the witness said and argued for inferences the jury could draw from that testimony, so the prosecutor did not intentionally misstate the evidence or mislead the jurors as to the inferences they could draw from it. Second, the prosecutor was attempting to present an objective view, rather than his personal opinion, of witness credibility by pointing out discrepancies between witness testimony and the bodycam recording showing that Herold was too intoxicated to stand. Third, the prosecutor’s comments about defense counsel attacked the theory of defense, not defense counsel. Therefore, there was no prosecutorial misconduct.

Lastly, the court of appeals rejected Herold’s undeveloped contention that the errors in this case constitute cumulative error.

The conviction for felony DUI was reversed and the case was remanded for entry of a judgment of conviction for misdemeanor DUI.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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